Niagara Fire Ins. Co. of N.Y. v. James

Citation172 S.E. 725,48 Ga.App. 276
Decision Date22 January 1934
Docket Number23181.
PartiesNIAGARA FIRE INS. CO. OF NEW YORK v. JAMES.
CourtUnited States Court of Appeals (Georgia)

Syllabus by the Court.

Under fire policy provision voiding policy, if, with "knowledge" of insured, foreclosure proceedings were commenced or notice given of sale by virtue of mortgage or trust deed, advertisement of sale under power in security deed did not void policy, unless insured had actual information or notice of advertisement.

A provision in a fire insurance policy that the policy shall be void "if, with the knowledge of the insured, foreclosure proceedings be commenced or notice given of sale of any property covered by this policy by virtue of any mortgage or trust deed," properly construed provides for voidance of the policy if the insured has knowledge of the "notice given" of the sale of the property under and by virtue of a power of sale contained in a deed to the property to secure debt. The "notice given" of the sale is the advertisement of the property under the power of sale as provided in the deed to secure debt. The insured must have knowledge, which is actual information or notice, of the advertisement of the property under the power of sale before the policy is voided by an advertisement made pursuant to the power of sale.

Error from City Court of Waycross; J. L. Crawley, Judge.

Suit by Joseph H. James against the Niagara Fire Insurance Company of New York. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.

Affirmed.

Spalding MacDougald & Sibley and Estes Doremus, all of Atlanta, and Wilson, Bennett & Pedrick, of Waycross, for plaintiff in error.

Parks Garrett & McDonald, of Waycross, for defendant in error.

STEPHENS Judge.

Joseph H. James, the insured under a policy of fire insurance upon his dwelling house which was incumbered with a deed to secure debt containing a power of sale upon default in payment brought suit against the Niagara Fire Insurance Company, the insurer, to recover for the loss of his dwelling by fire, in an amount alleged as representing the plaintiff's loss within the face value of the policy less the amount due and payable to the grantee in the security deed. The defendant denied liability solely upon the ground that at the time of the loss of the plaintiff's dwelling by fire the grantee in the security deed, pursuant to the power of sale therein, proceeded to advertise the property for sale to satisfy the past-due indebtedness for which the deed had been executed, and that therefore the policy was void and of no effect, by reason of the following provisions therein: "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void *** if, with the knowledge of the insured, foreclosure proceedings be commenced or notice given of sale of any property covered by this policy by virtue of any mortgage or trust deed." The defendant admitted that, but for the invalidity of the policy upon this ground, it was indebted to the plaintiff in the amount sued for.

From the uncontradicted evidence it appeared that the facts alleged by the defendant were true, and that the property had been advertised for the third time...

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