O'Brien v. Home Insurance Co.

Cassoday, J. It appears from the undisputed evidence that the father of the plaintiff died about 1877, leaving to his widow, and to the plaintiff and his two brothers, George and Martin, 116 acres of land, constituting the homestead of the deceased; that some time prior to August 6, 1885, [402] tbe widow died, leaving tbe title to tbe premises in tbe three brothers, as tenants in common; that at the date last named George commenced an action for partition of tbe land against Martin, and the plaintiff in this action, and bis creditors having liens upon bis interest therein; that November 20, 1886, tbe commissioners in tbe partition suit made their report, whereby they agreed to set off to George fifty-two acres of tbe land specifically described, and tbe other sixty-four acres, including tbe buildings on tbe premises, to Martin and tbe plaintiff, subject to such liens in favor of tbe plaintiff’s creditors; that tbe report was in fact agreed upon by tbe commissioners some time prior to the date last named; that November 10,1886, Martin conveyed bis interest in tbe sixty-four acres to the plaintiff by warranty deed; that at tbe time tbe plaintiff signed tbe written application for tbe insurance, November 15,188.6, there was a mortgage on tbe premises, owned by.Henry Hewitt, one of tbe defendants in the partition suit, upon which there was then due and unpaid over $900; that there were also five several judgment liens thereon, each docketed against tbe plaintiff in this action, and in favor of tbe defendants in tbe partition suit, aggregating $340, besides tbe interest thereon. In addition there were three mortgages in favor of Smith executed by George, aggregating $300, besides the interest thereon. Tbe application stated that tbe plaintiff was tbe owner of sixty-five acres of tbe land in fee, and that tbe same was incumbered to tbe amount of $350. In bis deposition taken before tbe trial tbe plaintiff admitted, in effect, that be bad signed tbe application, and that tbe title and incumbrance were correctly stated therein. On tbe trial tbe plaintiff and bis brother Martin testified to tbe effect that they, or one of them, told tbe defendant’s agent, at tbe time of taking tbe application, that tbe total amount of tbe Hewitt mortgage was $665, and that tbe plaintiff’s share thereof was about $450. As a matter of fact, tbe plaintiff’s share of tbe [403] land was incumbered at the time for at least two thirds of the amount due on the Hewitt mortgage, and the whole-amount of the judgments docketed against the plaintiff, aggregating over $1,000, to say nothing of the mortgages, given by George. Such being the undisputed evidence, it. is very obvious that, under the stipulations in the policy mentioned in the foregoing statement, and the repeated adjudications of this and other courts, the policy in question was void in its inception by reason of the false representations of the assured as to the amount of incumbrance upon the property at the time. Redmon v. Phœnix F. Ins. Co. 51 Wis. 292; Hankins v. Rockford Ins. Co. 70 Wis. 1; Kircher v. Mil. Mech. Mut. Ins. Co. 74 Wis. 473; Zimmerman v. Home Ins. Co. 77 Iowa, 685; Johnson v. Dak. F. & M. Ins. Co. 45 N. W. Rep. (N. D.), 799; German Ins. Co. v. Heiduk, 46 N. W. Rep. (Neb.), 481; Burlington Ins. Co. v. Gibbons, 43 Kas. 15. The motion for a new trial, on the ground of newly discovered evidence, made nearly a year after the entry of the order dismissing the complaint, was properly denied for laches and other r'easons. From the plaintiff’s affidavit it appears that he procured the attendance, upon the trial, of the defendant’s agent, Clune, who took the application, with the expectation of using him as a witness as to the circumstances attending the same, but that he left before he was called. No attachment was issued. No application for a continuance was made.. The affidavit of Olune is to the effect that the plaintiff made the statements contained in the application at the time it was signed, and that he had no information to the contrary. Besides, there is no claim that the plaintiff could have proved the facts to be different than he and his brother Martin had testified they were. The defendant was entitled to judgment upon their undisputed evidence. By the Court.—The judgment of the circuit court is affirmed.