Hawkes v. Dodge County Mut. Ins.

By the Court, Cole, J. This was an actioh on a policy of insurance, and the answer set up, that there was an incum-brance by mortgage on the property, at the time of the application for insurance, and that the plaintiff falsely represented that there was no incumbrance. The facts were, that the witness, Atherton, before the application, had made an arrangement with Hudson, the attorney, who was foreclosing the mortgage, by which he paid him $130; and Hudson loaned him the balance necessary to pay off the mortgage, by accepting his personal responsibility for that balance, and considered the mortgage paid, and discontinued the suit. Atherton then told the plaintiff that the mortgage was paid, and she made the application accordingly. We think the court below properly held that this mortgage was no longer an existing incumbrance on the land, although it was not yet discharged of record. We think it was just as much paid as though Hudson had actually handed over the money to Atherton as a loan, and then Atherton had paid it back on the mortgage. That was the substance of their agreement ; and Hudson retained the money as a payment, instead of handing it over, and immediately taking it back. The merits of the question certainly cannot turn upon the performance of such an idle ceremony. The money having been paid, the mortgage was extin [191] guished. If not discharged of record, that did not make it an existing incumbrance. It only left the records in such condition that they did not show its payment. But that could not prevent its being otherwise shown. Several objections are taken in the brief of the appellant’s counsel, to the finding of the facts by the court, for want of sufficiency and certainty. It is said that the finding is not sufficient with respect to the notice of loss, of the value of the property, &e. But the obvious answer to these objections is, that the facts are averred in the complaint, and are not denied in the answer, and are therefore taken to be true. It is as unnecessary for the court to find the facts admitted by the pleadings, as it was unnecessary for a special verdict to state them. The answer avers the existence of the mortgage, which matter we have already disposed of. It avers on information and belief that before the property was destroyed, the plaintiff had conveyed her interest in it to Atherton. The evidence clearly showed that this was not so. That she conveyed to Atherton only lot 2, whereas the house was upon lot 1. But upon this point it must be conceded, that the written finding is not as certain as it ought to be. It does not state that the house, at the time of its destruction, belonged to the plaintiff. Perhaps it would be impossible to support it, if it did not appear that at the time the cause was submitted, the judge delivered his decision, “ that there was sufficient evidence of title in the plaintiffand this is made a part of the bill of exceptions, which is signed by the judge. Section 20, chap. 132, R. S., requires the judge, although he has once filed his written finding, in settling the exceptions, to “ briefly specify the facts found by him, and his conclusions of law.” It appears here that the judge did, in his oral decision, find that the plaintiff had title, thus passing on the issue made by the answer on that point, but in afterwards filing his written finding, he did not distinctly pass upon it. Then in settling [192] the bill of exceptions, he finds it stated that he did pass upon that question in his oral decision, and he signs it. It being merely a technical point, we are inclined to regard this as sufficient to prevent a reversal of the judgment for want of a finding on all the issues. But it would be well for attorneys, in all actions at law, where the judgment depends on the sufficiency of the finding, to see that the findings are sufficient in point of form, and pass upon the issues made. Though it might be difficult for them to do this when the judge prepares his finding himself, and files it without their having any opportunity to. inspect it, or suggest alterations in point of form. The only other averment in the answer is, that the plaintiff had leased the house, .and that at the time it was destroyed, it was unoccupied; and it is averred that this increased the risk, and that the change was made without the consent of the defendant, and therefore it avoided the policy. There is a ■ clause in the policy, that if, during its life, the premises should be altered so as to be used in carrying on “ any trade, business or vocation which, according to the bylaws and conditions, class of hazards or rates thereto annexed, would increase 'the hazard,” without the consent of the company, in writing, it should avoid the policy.' The by-laws and conditions upon this point are not made a part of the case, probably for the reason that no reliance was placed upon it. It is quite obvious that when premises become vacant by reason of a tenant leaving them, that is not devoting them to a “trade, occupation or business” which increases the hazard. And if there is anything in the bylaws or conditions which prevented the owner from leasing the premises, or from leaving them unoccupied, the answer should have averred it. As it is, we do not think this part of it sets forth any defense. The judgment must therefore be affirmed, with costs.