Seybert's Administrators v. Pennsylvania Mutual Fire Insurance

Mr. Justice Paxsox delivered the opinion of the court, We cannot reverse this case without making a new contract between the parties. Tlie policy of insurance under which the plaintiffs claim to reeovei', contains this clause : “If, after insurance, the risk shall be increased by any means whatsoever, or if the property . . . shall be incumbered by judgment, mortgage or otherwise, . . . and the assured shall neglect or fail to give written notice thereof, and pay such additional premium as the company shall determine, and obtain written consent of the company to a continuance of the policy, such insurance shall be void and of no effect.” It was not denied that during the life of the policy a judgment was entered against the assured in the sum of $8,000. This judgment was an incumbrance upon the insured premises within the meaning of the policy. It was contended, however, that as the condition of the bond was to restore certain personal property which had been levied upon by the sheriff, or pay the amount of the execution with costs, and said condition had never been broken, there was no point of time when execution could have been taken out on the judgment, and hence it was not such an incumbrance as was contemplated by the policy. This is arguing in a circle. It is not a question of execution but of incumbrance. There was a judgment and a lien. That the condition of the bond was not broken is not material. A judgment for borrowed money may be upon record for years, and yet no right to an execution exist during all that time. This is always the case when the money is paid at maturity. In either case an execution may issue upon breach and not before. I am unable to distinguish this case from that of an ordinary judgment for borrowed money. The theory upon which tiie clause in the policy rests, is that encumbered property is not as safe a risk as property that is free from liens, and many companies require a higher rate of insurance in such cases. It is so with the defendant company, and it defends upon the ground that the assured has not paid the inmeased premiums for the increased risk. That it was an increased risk is fixed by the terms of the policy and the agreement of the parties. It is not an open question for our consideration. The terms of the policy are not ambiguous and do not need [286] construction; henee, Butz v. The Insurance Company, 6 Wright 285, and other eases cited, have no application. The argument that the judgment was entered without the knowledge of the assured is without force. It was entered upon liis confession, and he is chargeable with knowledge. A man who gives a judgment or mortgage knows that it may, and probably will be, placed on record. He may not Lave actual knowledge of the time of its entry, but the act is his, and he must be held responsible therefor. I am aware that it has been held in Green v. Homestead Fire Ins. Co., 82 N. Y. 517, and other New York cases, that mechanics’ liens are not incumbrances within the meaning of similar clauses in lire insurance policies. These cases, however, go upon the ground that the liens were not entered by the consent or procurement of the assured. These cases are not analogous and do not apply. If the assured here had notified the company defendant of the incumbrance, and had obtained its written consent to the continuance of the policy, that fact was peculiarly within his knowledge and should have been proved by him. As he did not do so, we may fairly presume the fact is not so. This may be a hard case, but the less we say about that the better. Onr province is to administer the law as we find it. Its proper administration will sometimes work individual hardship, but this is true of the application of all general rules. It is a much less evil than to construe the law to meet the supposed hardship of particular cases. Judgment affirmed.