Ingold v. Phoenix Assurance Co.

BauNhill, J. Tbe appeal of the plaintiff poses two questions for decision: (1) Was plaintiff the sole owner of the building destroyed by fire and as such entitled to the proceeds of the fire insurance policy sued on, and if not (2) Did the court below make proper apportionment of the recovery on said policy? Whatever is so firmly affixed or annexed to the freehold as to become thoroughly and substantially a part of the realty cannot afterward be removed except by him who is entitled to the inheritance. And so, as a general rule, a building on land is considered a part of the realty, or at least it is so presumed. Feimster v. Johnson, 64 N.C. 259; Springs v. Refining Co., 205 N.C. 444, 171 S.E. 635; Brown v. Ward, 221 N.C. 344, 20 S.E. 2d 324; Haywood v. Briggs, 227 N.C. 108, 41 S.E. 2d 289; 22 A.J. 714, 778. At common law all buildings become a part of the freehold as soon as they are placed upon the soil. Kutter v. Smith, 69 U.S. 491, 17 L. Ed. 830. “The ownership of land is not confined to its surface, but extends indefinitely, downwards and upwards. Cujus est solum, ejus est usque ad coelum. 2 Black. Com. 18. It includes not only the ground or soil, but everything which is attached to the earth, whether by the course of nature, as trees and herbage, or. by the hand of mail, as houses and other buildings. Co. Lit., 4a.” Gilliam v. Bird, 30 N.C. 280; S. v. Martin, 141 N.C. 832. The trend of modern decisions has tended to relax the rigidity of this common law rule so that now, subject to certain limitations, the intent of the parties as evidenced by their contract, express or implied, is controlling. Springs v. Refining Co., supra; Feimster v. Johnson, supra; 22 A.J. 728; Anno. 77 A.L.R. 1400. But the burden of proof is upon the party who claims a building is personal property to show that it retains that character. 22 A.J. 778. Here there was no express agreement that the building erected by .plaintiff was to retain the character of a trade fixture removable by plaintiff at the end of his term. The facts and circumstances surrounding the execution of the lease and the erection of the building refute the suggestion that it was so intended by the parties. It is expressly stipulated in the lease agreement that in the event plaintiff should discontinue business and vacate the building before the expiration of the term of the lease plus the permissible renewal term, “the building will automatically be *146 turned over to” the lessors. The building was composed of two brick walls standing on the land at the time the lease was executed, raised and extended by plaintiff, the extension being of wood construction. It was erected for the better enjoyment of the land and not as a trade fixture, Pemberton v. King, 13 N.C. 376; R. R. v. Deal, 90 N.C. 110, and it could not be removed without injury to the freehold. 22 A.J. 724; Frost v. Schinkel, 77 A.L.R. 1381. The action of plaintiff in joining with the landlord as coinsurer was an acknowledgment of her insurable interest therein. Plaintiff could have no right to remove the brick walls standing on the premises at the time the lease was executed. To attempt to remove the additions thereto would require him substantially to destroy the very thing he claims. The court below was not required to assume the parties so intended. What then, as between the landlord and tenant, jointly insured, was the insurable interest of the tenant? On this question this case is one of first impression in this jurisdiction. The parties have called our attention to no ease from any other jurisdiction directly in point and we have found none. We concur in the opinion of the court below that plaintiff’s insurable interest under the circumstances here disclosed was the right to use the building during the continuance of his term. He did not purport to insure as the sole owner but joined with the landlord in so doing, thereby recognizing her property interest therein. Then when the loss occurred, he signified his unwillingness to have the fund used to replace the building. Instead, he abandoned his lease altogether. To have that which represents the use of the building during the term when he has disavowed his liability under the lease would seem to be all that he can justly claim. This conclusion is in line with the decisions of this Court in analogous cases where the rights of tenants for life and remaindermen in and to the proceeds of fire insurance policies were at issue. Graham v. Roberts, 43 N.C. 99; Campbell v. Murphy, 55 N.C. 357, at p. 363; Anno. 16 A.L.R. 313. The recovery by the tenant may be on a different basis when he alone insures. Stockton v. Maney, 212 N.C. 231, 193 S.E. 137; Houck v. Insurance Company, 198 N.C. 303, 151 S.E. 628; Anno. 126 A.L.R. 345. The plaintiff tendered testimony tending to show that originally he obtained a policy in the sum of $6,000, insuring his interest alone, and defendant Winesette had a policy in the sum of $5,000, insuring her interest; that at the suggestion of the insurance agent it was agreed that they should cancel the outstanding policies and obtain jointly the policy sued on; that he had his outstanding policy canceled but the landlord, in *147 bread of ber agreement, failed to bave ber $5,000 policy canceled. Tbis evidence was excluded and plaintiff excepted. For two reasons tbe ruling of tbe court below must be sustained. First, no sucb agreement is pleaded. Proof without allegation is as unavailing as allegation without proof. Whichard v. Lipe, 221 N.C. 53, and cases cited; Coley v. Dalrymple, 225 N.C. 67, 33 S.E. 2d 477; Suggs v. Braxton, 227 N.C. 50, 40 S.E. 2d 470. Second, tbe court below allowed plaintiff to recover on tbe basis of $6,000 though bis insurer paid only its ratable portion of tbe total. Tbis is exactly wbat be would bave recovered bad tbe landlord complied with ber agreement to cancel ber individual policy. On tbis record plaintiff’s assignments of error fail to point out cause for a new trial or for modification of tbe judgment rendered. Appeal oe PhoeNix AssueaNCE CompaNY, Limited. Proof of loss under tbe policy was filed by plaintiff on 3 September 1947 and by defendant Winesette on 1 May 1948. On 5 May 1948 defendant insurance company tendered to tbe insured its draft on tbe National City Bank of New York in tbe sum of $3,272.73 in full settlement of tbeir claim for loss under its policy of insurance. Plaintiff declined to accept tbe tender for tbe reason it did not represent tbe full amount due, and defendant Winesette signified ber willingness to accept. Likewise, in its answer said defendant admitted that $3,272.73 is due tbe insured; renewed its tender thereof without producing either draft or money, and alleged that it “is ready and willing to bring said amount in money, together with any interest that may be due thereon, into Court to be paid to tbe party or parties entitled thereto.” Said insurance company excepts to tbe judgment for that the court failed and refused to recognize its tender before trial and in its answer as sufficient in law to stop interest and save costs. Tbe assignment of error bottomed on tbis exception is untenable. Tbe original tender was made more than six months after tbe amount payable under tbe policy bad become due. Interest on tbis amount bad accrued, but tbe amount thereof was not included in tbe tender. While defendant alleges its willingness to pay said sum with accrued interest into court and prayed judgment that “it may be allowed to bring tbe money into Court,” it never deposited in court either principal or interest. Thus, neither of said tenders was sufficient to stop interest and save costs. To constitute a valid tender tbe offer must include tbe full amount tbe creditor is entitled to receive, including interest to tbe date of tbe tender. Duke v. Pugh, 218 N.C. 580, 11 S.E. 2d 868, and cases cited. “Mistake in tendering an amount less than the sum due is tbe misfortune of tbe *148 tenderer, and the position of the parties remains the same as if no tender had been made. 62 C.J. 661.” Duke v. Pugh, supra. It is the universal rule that in order to constitute a valid and effectual tender of money admitted to be due, the party who makes it must allege and show that since the refusal to accept the money he has always been ready to pay the same, and must bring the amount of the tender into court. Dope v. Bryson, 60 N.C. 112; Parker v. Beasley, 116 N.C. 1; Bank v. Davidson, 70 N.C. 118; Lee v. Manley, 154 N.C. 244, 70 S.E. 385; DeBruhl v. Hood, 156 N.C. 52, 72 S.E. 83; Medicine Co. v. Davenport, 163 N.C. 294, 79 S.E. 602; Debnam v. Watkins, 178 N.C. 238, 100 S.E. 336. “A plea of tender, not accompanied by proferí in curia, is bad. Saper v. Jones, 56 Md. 503.” Parker v. Beasley, supra; DeBruhl v. Hood, supra. The judgment entered provides that the amount recovered shall bear interest from 19 July 1947. In this there was error. The policy provides that any amount of loss for which the insurer may be liable shall be payable sixty days after proof of loss and ascertainment of the loss is made either by agreement of the parties expressed in writing or by an award as provided in the policy. While the loss occurred 19 July 1947, proof of loss was not filed until 3 September 1947. November 2 — sixty days thereafter — was the earliest date from which interest could begin to accrue. Any contention that interest could not begin until notice of loss was filed by the defendant Winesette on 5 May 1948 is without merit. The proof filed by plaintiff, coinsured, put the insurance company on notice of the loss. The proof filed by defendant Winesette served only to give notice she was claiming an interest in the sum payable under the policy. The court below taxed the costs one-third against plaintiff and one-third against each defendant. But this is not a proceeding in equity in which the court had the discretion to apportion the costs. It is an action at law in which the plaintiff has recovered at least a part of the amount claimed to be due. His recovery carries the costs as a matter of course. Hence the costs assessed against him must be taxed against the corporate defendant. The judgment entered must be modified accordant with this opinion and as so modified it is affirmed. Modified and affirmed.