Boulden v. Phoenix Ins. Co.
| Decision Date | 16 June 1896 |
| Citation | 20 So. 587,112 Ala. 422 |
| Parties | BOULDEN v. PHOENIX INS. CO. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Jefferson county; James J. Banks, Judge.
Action by Charles M. Boulden against the Ph nix Insurance Company on a policy of insurance. There was a judgment for defendant and plaintiff appeals. Reversed.
Chas B. Powell, for appellant.
Lea & Bell and Arnold & Evans, for appellee.
This is an action by Boulden on a policy of insurance against fire upon an hotel near Birmingham. The policy contained the following condition: "If the interest of the assured in the property be other than the entire, unconditional, and sole ownership of the property for the use and benefit of the assured, or if the building stands on leased ground, or if the property hereby insured, or any part thereof, is mortgaged or otherwise incumbered, or if the interest of the assured in the property be not truly stated, then and in every such case this policy shall be void." The defendant pleaded that the interest of the assured in the property "was other than the entire, unconditional, and sole ownership, and that the building in said policy described stood upon leased ground, which facts were not expressed in the written part of the policy, nor so represented to the company." Upon the theory that this plea was proved, the court gave the affirmative charge for the defendant; and that action alone is relied upon by the appellant to secure a reversal of the judgment.
The burden was on the defendant to prove this plea, and, in our opinion, it has failed to do so. There is no evidence that the land on which the insured building was situated was under lease to the plaintiff, but the contrary appears. The evidence as to the assured's ownership was that of the plaintiff himself, given on cross-examination, as follows That he owned the land on which the house was situated, under a contract; that he did not have a deed to it; and that there was $1,000 due on the land. The fact that plaintiff had no deed did not prove the plea. Insurance Co. v Caldwell, 95 Ala. 77, 10 So. 355. If it be conceded that this evidence shows that the vendor held a lien on the land for $1,000 of purchase money,-which, to say the least, is not clear,-the existence of such lien is not inconsistent with entire, unconditional, and sole ownership by the plaintiff, and does not support the plea. The court therefore erred in giving the...
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