Bartling v. German Mut. Lightning & Tornado Ins. Co. of Farmers of Maxfield & Vicinity

• Decision Date: 07 March 1912
• Citation: 134 N.W. 864,154 Iowa 335
• Court: Iowa Supreme Court
• Parties: BARTLING v. GERMAN MUT. LIGHTNING & TORNADO INS. CO. OF FARMERS OF MAXFIELD AND VICINITY.

154 Iowa 335

134 N.W. 864

BARTLING

v.GERMAN MUT. LIGHTNING & TORNADO INS. CO. OF FARMERS OF MAXFIELD AND VICINITY.

Supreme Court of Iowa.

March 7, 1912.

Appeal from District Court, Bremer County; Clifford P. Smith, Judge.

Action on a policy of insurance issued by a farmers' mutual company. By agreement it was tried in equity. There was a decree dismissing the petition. Plaintiff appealed. Affirmed.Sager & Sweet, for appellant.

Hagemann & Farwell, for appellee.

DEEMER, J.

This action is upon an insurance policy covering a barn which was destroyed by fire on April 23, 1906. Defendant company is a mutual association composed of farmers, and the policy issued by it has none of the usual forfeiture clauses. It is claimed, however, that at the time of the fire plaintiff had no insurable interest in the property destroyed; that the policy is one of indemnity; and that plaintiff suffered no loss by reason of the fire. The trial court, after hearing the testimony, found for the defendant, and plaintiff appeals. The questions presented are largely of fact, and the underlying one is this, Did plaintiff have an insurable interest in the property at the time of the fire?

The policy was issued June 19, 1901, and continued for the period of five years. By its terms, it covered loss or damage by fire to the amount of $700 upon the barn in question, which was described as situated upon a certain section of land in Jackson, Bremer county. The oral testimony identifies the barn as one situated upon a certain 110 acres of land in Bremer county, owned, at the time the policy was issued, by the plaintiff in this suit. It appears, however, that in November of the year 1905 plaintiff entered into an oral agreement with one Wamsley, whereby he undertook to convey the land to Wamsley in exchange for certain real estate owned by Wamsley and $750 in cash. By the terms of this exchange, plaintiff's farm was valued at $7,700; but it was incumbered at that time by two mortgages, one of $1,400 and another of $70, and Wamsley's property, which consisted of certain lots in the city of Waverly upon which there was a livery barn, was taken at a valuation of approximately $6,000. This property was covered by a mortgage of $2,000, and Bartling was to assume but $1,500 thereof. Each party agreed to give good title to his property, save as to the incumbrances mentioned. From this point on, the record is in some confusion; but, as we understand it, Bartling and wife, on November 3, 1905, executed a warranty deed of the 110 acres of land to one C. H. Ilgenfritz, which deed was made subject to the two mortgages mentioned, and on the same day Wamsley and wife executed a warranty deed to the property upon which the livery barn stood to the plaintiff, subject to a mortgage of $2,000 held by the First National Bank of Waverly, $1,500 of which the grantee, Bartling, assumed and agreed to pay. This $2,000 mortgage also covered other property, described as follows: “Lots three (3) and four (4) block seventy-six (76) of southwest quarter (1/4) of northeast quarter (1/4) of section three (3), twp. 91, range 14, except south 1/2 rod in width reserved for alley, being same land as originally platted as lots 7, 8, 9, 10, 11 and 12, block 76, Harmon & Le Valley's addition to Waverly, Iowa. Also lots 8, 9, and 10 in block 101, Harmon & Le Valley's addition to Waverly, Iowa.”

Wamsley purchased the property which he conveyed to plaintiff with other property from one Gillett, and in the deed conveying the same, there was this reservation: “Provided, however, that grantors herein expressly reserve their vendors' lien on and against the above-described property for unpaid purchase money, on this conveyance.”

Wamsley and wife had also given a second mortgage to Gillett covering the lots they had purchased from Gillett, but not upon the lot traded to plaintiff, Bartling. This mortgage was to secure the sum of $818.86. Bartling deeded his land upon which the barn was located to Ilgenfritz, pursuant to the following arrangement: Wamsley did not have the boot money which he was to pay Bartling on the trade, and he arranged with Ilgenfritz to furnish it and also make him some other advancements, provided the deed was made directly from Bartling to him. Ilgenfritz, then, made a written contract with Wamsley to deed him the land when these advancements were repaid. The reservation of the vendor's lien to the Gilletts upon the property conveyed to Bartling being a cloud upon the title, the papers, so far referred to, were delivered to a lawyer in escrow until the matter was fully cleared up. However, Bartling received his $750 in cash, and Wamsley went into possession of the Bartling land March 1, 1906, as agreed. Wamsley undertook to get the vendor's lien released, but could not do so, and it was then agreed that Bartling should take the other two lots which Wamsley had purchased from Gillett, and, as the record says, “turn back to me the note on those lots that I had given of $818.” As a matter of fact, it was agreed between Bartling, Wamsley, and Gillett that the Gilletts would release their vendor's lien upon the lot on which the livery barn was standing, which Wamsley had conveyed to Bartling, upon condition that the Wamsleys, husband and wife, would convey the other lots sold by them to Wamsley and Albert and L. S. Gillett, and pursuant thereto Wamsley and wife did convey the same to the Gilletts on March 1, 1907, and the Gilletts returned the note and mortgage for the $818 to Wamsley.

The second agreement to which we have referred, whereby Bartling agreed to take the other lots from the Gilletts, in order to get the vendor's lien on the livery barn property released, was made January 2, 1906, and as a part of that transaction Bartling agreed to pay $300 more of the bank mortgage of $2,000 or $1,800 in all. As a matter of fact, the vendor's lien on the livery barn property was released of record January 2, 1906, and, so far as that property was concerned, there was no cloud upon it, save, perhaps, the balance of the $2,000 mortgage to the First National Bank, which balance was reduced by agreement to $200. There was a policy of insurance on the livery barn which Wamsley conveyed to Bartling, and it was agreed that this policy should be assigned to Bartling, and it was also agreed that plaintiff's policy upon the barn on the 110 acres of land should be transferred to Wamsley. Although the record is in some confusion, we think it shows that all the deeds and releases, save, perhaps, the deed from...