Atlas Fire & Tornado Ins. Co. v. Malone

• Decision Date: 19 June 1911
• Citation: 138 S.W. 962
• Parties: ATLAS FIRE & TORNADO INS. CO. v. MALONE.
• Court: Arkansas Supreme Court

138 S.W. 962

ATLAS FIRE & TORNADO INS. CO. v. MALONE.

Supreme Court of Arkansas.

June 19, 1911.

Appeal from Circuit Court, Monroe County; Eugene Lankford, Judge.

Action by J. V. Malone against the Atlas Fire & Tornado Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Thomas & Lee, for appellant. H. A. Parker and G. F. Chapline, for appellee.

KIRBY, J.

This action was brought by appellee against the fire insurance company upon a policy issued to him by it on March 14, 1910, upon a store building and certain fixtures therein, for $500, the amount of the policy; a loss having occurred during the life of it, and proof of loss being duly made under its terms. Appellant objected to the payment of the loss, claiming that the policy was void because the title of appellee to the property was other than unconditional and sole ownership, both legal and equitable.

The policy provided: "This entire policy shall be void if the insured has concealed or misrepresented in writing or otherwise any material fact or circumstance concerning this insurance or the subject thereof, or if the interest of the insured in the property be not truly stated herein; * * * or if the interest of the insured be other than unconditional and sole ownership both legal and equitable."

The agent of appellant who was authorized to issue policies solicited the risk of appellee, and the policy was issued upon the storehouse, situated on the north half of lot 1, block 9, in the town of Blackton, and the fixtures contained therein. No written application was made for the insurance nor representations as to title.

The answer alleged that appellee was not the owner of the property at the time he applied for the insurance, and that his representation "as to his ownership of said property at the time he obtained the insurance was false and fraudulent, and the fact that he was not the owner thereof was concealed by him in order that he might obtain the insurance on this property," and denied liability because thereof.

The testimony showed that the fire which destroyed the building and fixtures occurred on the morning of May 31, 1910; that the proof of loss was received by the company on the 15th day of June, showing the value of the fixtures to be $479.75, and the building $300.

Appellee testified that he bought the property in January, 1910, and was the owner thereof and in possession of it from that time until it was burned. He offered in evidence the following deed: "Warranty Deed. Know all men by these presents, that we, S. L. Brown, widow of W. C. Brown, Effie Brown and A. G. Brown, heirs at law of W. C. Brown, deceased, and Florence Brown, wife of the said A. G. Brown, for and in consideration of the sum of two hundred and thirty-nine 29-100 dollars, to us in hand paid by J. V. Malone, the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell and convey unto the said J. V. Malone, and unto his heirs and assigns forever, the following lands lying in the county of Monroe and state of Arkansas, to wit: The north half of lot No. One, Block Number Nine, Twn. of Blackton, Ark. To have and to hold the same unto the said J. V. Malone, and unto his heirs and assigns forever, with all appurtenances thereunto belonging. And we hereby covenant with the said J. V. Malone that we will forever warrant and defend the title to the said lands against all claims whatsoever, and that we will procure deed from Winnie Brown, the remaining heir at law of the said W. C. Brown, as soon as she reaches maturity, and will protect the said Malone from all claims of title made by her as heir at law of the said W. C. Brown. And I, Florence Brown, wife of the said A. G. Brown, for and in consideration of said sum of money, do hereby release and relinquish unto the said J. V. Malone, all my rights of dower and of homestead in and to the...