Gettelman v. Commercial Union Assurance Co.

Cassoday, C. J. From the facts stated, it is very manifest that neither at the time of procuring the policies, nor at any time thereafter, did Gettelman have any right, title, or interest in or to the land contract, except that he held it as a pledge from Mrs. Lynds to secure him for the repayment of $303.66, which he had advanced for her benefit, and interest thereon at six per cent, from November 15, 1894. It is equally manifest that at the time the policies were procured, [241] and at all times during the life of the policies, Mrs. Lynds was in the exclusive possession of the premises, and held the same as vendee under the contract from Durbin, as vendor. True, she had, by way of an assignment, pledged the contract to Gettelman to secure the repayment of the amount so advanced ; but there is nothing in that assignment nor in the record to indicate that Gettelman was to have possession of the premises, nor that she or any one else was thereafter to occupy the saloon and dwelling house upon the premises, as his tenant, as falsely recited in the policy. The mere fact that the written assignment was absolute in form did not preclude parol evidence to show that the transaction was merely a pledge to secure the repayment of moneys advanced. Wilcox v. Bates, 26 Wis. 465; Schriber v. Le Clair, 66 Wis. 579; Carey v. Liverpool & L. & G. Ins. Co. 92 Wis. 538. The fact that, four weeks prior to procuring the policies, Gettelman consented to receive, and did receive, the $1,730 which Mrs. Lynds had previously tendered to redeem the contract from such pledge, would seem -to be conclusive that he then understood that he held the assignment as mere security. True, such acceptance was under an order that it should not prejudice his right to contest Mrs. Lynds’ claim, and that it should not be construed as an acceptance in full payment; but he had no right to the money, except as a creditor in repayment for moneys so advanced, and for which he held the assignment as security. There can be no question but that Mrs. Lynds, being in the absolute possession of the premises at the time the insurance was procured, and having previously paid a large amount upon the contract, had an insurable interest in the building. Johannes v. Standard Fire Office, 70 Wis. 196; Horsch v. Dwelling House Ins. Co. 77 Wis. 4; Carey v. Liverpool & L. & G. Ins. Co. 92 Wis. 538. It is also certain that the vendor, Durbin, had an insurable interest in the building. While Gettelman was never in possession of the premises, and his beneficial interest [242] therein was very much less than either of the others, yet it. may be assumed that he had an insurable interest therein. The important question is whether, upon the facts stated, the plaintiffs can recover upon the policies in question. The complaint, verified by Durbin, alleges, in effect, that ever-since November 17, 1893, Gettelman had been continuously the owner and holder of the land contract, and all the right,, title, and interest which Mrs. Lynds had in and to the land and premises therein described, so conveyed to him by said assignment. Had Gettelman, at the time he procured the-policies, thus been the unconditional and sole owner of the land contract, it might well have been argued that the plaintiffs could recover in this action, notwithstanding the policies-each recite that the same should be void if the building insured was situated “ on ground not owned by ” him “ in fee simple” since each policy also recites that he held title to-the property under land contract, and that the loss, if any,, should be payable to John Divrbin, as his interest might appear. But, as indicated, Gettelman was not the unconditional and sole owner of that contract. He held the assignment merely as security for moneys advanced, and subject to be extinguished at any moment by the payment of such indebtedness. Mrs. Lynds was at all times in the exclusive possession of the premises insured, and the real owner of the contract; and her right, title, and interest in and to the same could not. be extinguished, except by her failure to pay and apt proceedings to bar her of such fight, title, and interest. There is no claim that any such proceeding was ever instituted, nor that she was ever barred of any such possession, right, title, or interest. Her possession, title, and interest were certainly material to the risk; and yet, if the recovery of the plaintiffs, was to stand, she could not share in the amount recovered. Edwards v. Agricultural Ins. Co. 88 Wis. 450. The action is to recover upon.policies of insurance, each of which.expressly provides, in effect, that the entire policy should be: [243] void if tbe interest of Gettelman was “ other than unconditional and sole ownership.” His interest was not only very small as compared with the interest of Mrs. Lynds, but was conditional. ' Upon the admitted facts and the express terms of the policy, it would seem to have been void in its inception. Hankins v. Rockford Ins. Co. 70 Wis. 1; O'Brien v. Home Ins. Co. 79 Wis. 403; Stevens v. Queen Ins. Co. 81 Wis. 335; Wilcox v. Continental Ins. Co. 85 Wis. 193. It is no answer to say that Durbin's interest in the premises was greater than the insurance. Durbin did not procure the policies, but Gettelman did; and he took each policy containing a clause which, under existing conditions, known to him at the time, made it void in its inception. Besides, the policy contained another clause, quoted in the statement, making it entirely void in case of any fraud or false swearing by the assured, relating to the insurance or the subject thereof, whether before or after the loss. Gettel-man, in his proofs of loss, testified, under oath, to the effect that the property insured “belonged exclusively to John Durbin, subject to a land contract held by Adam Gettelman,” and that “ no other person or persons had any. interest therein'' This was certainly false, and in view of Gettelman's knowledge of all the facts and his admissions upon the trial, as to Mrs. Lynds’ interest and the extent of his own interest, it would seem that it must have been made with the intent to bring his claim within the terms of the respective policies, and thus deceive the companies by concealing from 'them Mrs. Lynds’ interest in the premises and ownership of the land contract. If such false swearing was made with such intent, then there can be no question, upon well-recognized principles of law, but it avoided the policy. F. Dohmen Co. v. Niagara Fire Ins. Co. 96 Wis. 38, and cases there cited,, particularly Claflin v. Comm. Ins. Co. 110 U. S. 81. If such intent does not appear as a matter of law, still it would be a question of fact for the jury. Id. [244] In any view of the case, it was error to direct a verdict in favor of the plaintiffs. By the Court.— The three several judgments of the superior court of Milwaukee county are each reversed, and the cause is remanded for a new trial.