Cowell v. Ph&oelig

• Decision Date: 29 May 1900
• Citation: 36 S.E. 184,126 N.C. 684
• Court: North Carolina Supreme Court
• Parties: COWELL. v. PHŒNIX INS. CO.

126 N.C. 684

36 S.E. 184

COWELL.

v.PHŒNIX INS. CO.

Supreme Court of North Carolina.

May 29, 1900.

FIRE POLICY—STATUTE OF FRAUDS—BUILDING ON LEASED GROUNDS—INSTRUCTIONS. 1. Where a fire policy provides that it shall be void if the insured is not the unconditional owner of the property, the company cannot de feat a recovery thereon by showing that the property insured was not conveyed to the insured in writing, as required by the statute of frauds, as the statute can only be invoked in actions between the parties to the sale.

2. An application attached to a fire policy recited that it covered a certain house on leased land. A condition in the policy provided that it should be void if the building insured was not on ground owned in fee by the insured, unless otherwise provided by agreement indorsed on the policy. The company knew that the building was on leased property when it was insured, but no indorsement showing such fact was made on the policy. Held, that the company could not defeat a recovery on the policy on the ground that it was on leased ground.

3. Where there was no evidence in conflict with that of plaintiff, which, if true, would entitle him to recover, it was not error to refuse to instruct that, if the jury believed the evidence, they should find for the defendant, and to instruct that, if they believed plaintiff's testimony, he was entitled to recover.

Appeal from superior court, Pamlico county; Starbuck, Judge.

Action by J. F. Cowell against the Phoenix Insurance Company. From a judgment in favor of plaintiff, and an order denying a motion for a new trial, defendant appeals. Affirmed.

Simmons, Pou & Ward, for appellant.

W. W. Clark, for appellee.

FAIRCLOTH, C J. This is an action to recover the amount of a fire insurance policy. The defendant issued the policy to the plaintiff on a dwelling house, household furniture, and other personal property. Policy issued May 24, 1898, and the property was destroyed by fire November 21, 1898. These facts are admitted. The defense is that the plaintiff was not the sole and unconditional owner of the house when it was insured or when it was burnt; that the plaintiff concealed the fact that he was not the owner of the land on which the house was situated, and failed to disclose the true ownership thereof; and that the policy was therefore void, according to the terms of the policy. The defendant introduced in evidence the record of an action instituted in 1896, styled Daniels v. Fowler (N. C.) 31 S. E. 598, from which it appeared that S. H. Fowler had made an assignment of his property to one Baxter, who conveyed the same to C. H. Fowler with an allegation that said assignment was fraudulent and void; that said suit continued until spring term 1898, when the verdict and judgment declared said assignment to be void; and that the plaintiff, Daniels, and others were the owners of the property in controversy. The plaintiff here was a party to the action of Daniels v. Fowler. The defendant offered other evidence showing that plaintiff and said C. H. Fowler were in business in a shop on said lot of land; that it was moved about 50 feet on said lot, and made to front another street, and separated from the balance of the lot, and was converted by improvements and additions into a dwelling house by plaintiff, and occupied by him as a residence until the fire. This is the insured house, now the subject of this action. Plaintiff's evidence: J. P. Cowell testified that: "The burned building was formerly used as a barroom. Outside was of rough boards. I bought the house of C. H. Fowler in 1894. There was no deed. Paid him $100. (Defendant objected to the statement that he bought the house in 1894, on the ground that the sale would have to be in writing. Overruled, and defendant excepted.) I moved it to another part of the same lot. It cost me $1,000 to rebuild it. I leased the land which it was moved on from C. H. Fowler. I had no notice of any fraud at the time I made the purchase. I leased the land a year from each January, in 1894, when I moved the building. I leased it with the understanding that it was to be renewed each January as long as C. H. Fowler...