Ellis v. State Ins.

Seevers, JV — The policy was issued to E. R. Ellis & Co., and assigned to the plaintiff, on December 23 1881. The policy contained the following provision: “If the title of the property is transferred, encumbered or changed, this policy shall be void.” The defendant sought to prove that the assured, on the sixth day of December, 1881, had executed ¿ mortgage on the insured property, and that the same was an existing encumberance thereon at the time the property was destroyed by fire. The evidence was rejected by the court, as we think, erroneously. Counsel for appellee maintain that the provision of the policy that “if the title of the property is transferred or changed” refers alone to the title, as contra-distinguished from the property insured, and that an encumbrance by mortgage does not render the policy void. But we think the only fair and reasonable construction of the condition of the policy is that if the property is encumbered the policy is void. The intention was to render the policy [578] void, if the interest of tbe assured was rendered less than it was when tbe policy was issued; for thereby tbe risk would undoubtedly be increased, because of the temptation on the part of tbe assured to improve bis condition by voluntarily setting out tbe fire, or failing to exert himself to prevent a total destruction of the property when the fire was accidental. It is impossible, it seems to us, to encumber property without affecting or rendering less valuable the title thereto. The title to the property in question was encumbered. A mortgage, it seems to us, necessarily lias sucb an effect. This being so, it is useless to cite authority to show tliat the evidence offered should have been admitted, for, if tbe claimed fact existed, then there can be no recovery on tbe policy. Eeversed.