Lodge v. Capital Insurance

Rothjbock, J. [104] I. The policy of insurance upon whieh the action is founded was executed on the twenty-fourth day of February, 1887; and the property insured thereby was a dwelling house and barn, and certain goods and chattels kept and used in the insured buildings. The insurance on the dwelling house was five hundred dollars; on the household furniture therein, two hundred dollars; and on the barn, one hundred and fifty dollars; and on horses and harness kept therein, one hundred and fifty dollars. The insurance was for five years, and the premium therefor was fully paid. The house and barn, and the personal property in the house, were totally destroyed by fire on the twelftlx day of December, 1890. Proper proofs of loss were made, and payments demanded and refused, and this action was brought to recover for the loss. We will not set out the answer in detail, and it would serve no useful purpose to set out and discuss some of the objections and alleged errors argued by appellant’s counsel. They are exceedingly technical, and made, no doubt, out of what is sometimes called “abundant caution.”' They include the claim that the verdict was excessive; that theplaintiff was permitted, as awitness, to testify to thevalue of the household goods, without a showingthat she was a competent witness to testify to the value of property of that kind; that the plaintiff ought not to recover because the policy provides that “fraud, false sweaiing, misrepresentation, or any concealment of, or omission to make known, a material fact, on the part of the assured, whether in applying for their insurance, or in the proofs of loss, or otherwise, shall render this [105] policy, and any renewal thereof, void.” There are no facts in the record which we think sustain any such claim. The jury was warranted from the evidence in finding that this clause in the policy was not violated by the plaintiff. 2 II. We will now proceed to consider what appear to us to be the material questions in the case: The policy provides that it shall be void “if incumbrance be placed thereon.” It is claimed that after the policy was issued the property became incumbered by the lien of a judgment against the assured. The question presented is whether a judgment is an incumbrance, within the meaning of the above clause in the policy. Appellant claims that this is not an open question in this state, and cites the case of Hicks v. Insurance Co., 71 Iowa, 119, 32 N. W. Rep. 201. That -ease was determined upon a demurrer to the answer which set up a clause that the policy should be void “if the property, or any part thereof, be hereafter, in any manner whatever, incumbered,” and that it became incumbered by a mortgage, and a judgment against the plaintiff. It was held that this avoided the policy. The •opinion is quite brief, and the lien of the mortgage and the judgment were considered together. There was no ■separate consideration upon the effect of a judgment lien. It may be that, if that question had been presented alone, it would have been held that the policy was avoided by the lien. The language “in any way incumbered,” is very broad. We think that the clause in the policy in the case at bar is more restricted. It provides that the policy shall be void if “incumbrance be placed thereon.” This implies some affirmative act of the assured, such as the execution of a mortgage or other lien, and not such a lien as may be cast upon the property by operation of law. Placing a lien upon property by the owner is altogether different from a lien being established against his consent. Courts are not disposed to construe these restrictions and limita [106] tions in insurance policies more liberally than is required from the language used, and thereby defeat what otherwise appear to be honest claims for indemnity against loss. As is usual in the law of insurance, there are adjudged cases to be found on both sides of the question as to whether a judgment is a lien, within the meaning of clauses somewhat similar to the one in the case at bar. That a judgment is not a lien in such a case, see Bailey v. Insurance Co., 80 N. Y. 21; Green v. Same, 82 N. Y. 517; Hosford v. Insurance Co., 127 U. S. 404, 8 Sup. Ct. 1199. Our conclusion is that, if it is desired to make the policy void by incumbrances which are not placed on the property by the act of the parties, it should, in terms, be so provided in the contract. 3 III. It appears that an execution was issued on the judgment, and the property was levied upon and sold; and it is urged that the risk of loss was thereby increased, and the policy became void because of a provision in the contract that the same should be void if the risk be increased by any means within the control and knowledge of the assured. We have' said that the judgment was not such an incumbrance as avoided the policy. The defendant, by the clause as to incumbrances, having provided against them, ought not, in fairness, to be allowed to invoke the general increase of risk clause to apply to a judgment incumbrance, or to a levy and sale thereunder. [106] IY. The policy further provides that “if any change takes place in the title, ownership, or possession, the policy shall be void, unless consent thereto is indorsed in writing on the policy by the company.” The judgment referred to herein was rendered for costs and attorney’s fees in an action for an injunction, in which it was charged that the plaintiff kept and maintained a liquor nuisance in the insured dwelling house. [107] An execution was issued on the judgment, and the property was sold. Before the expiration of the period of redemption, the purchaser was paid the full amount necessary to redeem, by the husband of the plaintiff, with an agreement that the purchaser should take a sheriff’s deed when the time for redemption expired, and then convey the property to the plaintiff’s husband. The purchaser took a sheriff’s deed, but had made no conveyance when the fire which destroyed the property occurred. It is claimed that the title was in the purchaser at the sheriff’s sale, and that the policy was, therefore, void. It is apparent that there was no substantial violation of this part of the policy. It does not appear that the plaintiff consented that the purchaser at the sheriff’s sale should convey her property to another. The payment of the full amount due to the purchaser operated as a redemption, and the defendant ought not to be allowed to take advantage of a mere apparent change of title, which does not affect any right. The plaintiff herein was in undisturbed possession of the property when the loss occurred, and the purchaser at sheriff’s sale makes no claim thereto. .5 Y. It is urged that the policy is void because the house was not used solely as a dwelling, but that part of it was used for carrying on a liquor saloon. The plaintiff denied that she kept- and maintained a saloon on the premises. She had a right to make this denial. As between the plaintiff and the defendant, that was an open question. Evidence was introduced, and there is a fair conflict as to the fact. We are not authorized to interfere with the verdict on this ground. We think it is sustained. There is no other question in the case which we think it necessary to discuss. The judgment of the district court is aeeibmed.