Capitol Ins. Co. v. Bank of Blue Mound
| Decision Date | 09 April 1892 |
| Citation | 48 Kan. 393,29 P. 576 |
| Parties | THE CAPITOL INSURANCE COMPANY v. THE BANK OF BLUE MOUND |
| Court | Kansas Supreme Court |
Error from Linn District Court.
ACTION upon two fire insurance policies. Judgment for the plaintiff Bank, on June 7, 1889. The defendant Company comes to this court. The facts are stated in the opinion.
Judgment affirmed.
D. R Hite, for plaintiff in error.
James D. Snoddy, for defendant in error.
OPINION
This was an action upon two insurance policies issued by the Capitol Insurance Company, a mutual fire insurance corporation organized under the laws of this state, and assigned to the Bank of Blue Mound. The first policy was made to Mills & Allen, for $ 1,000, upon a stock of drugs, and covered a period of one year from the 27th day of November, 1887. The application for insurance stated that the property was not mortgaged. The second policy was issued on the 7th day of January, 1888, to W. B. Clark, for the sum of $ 350, and was upon his building in Blue Mound. In the application of Clark for insurance, it was stated that there was an incumbrance on the property for $ 500. On the 7th day of June, 1888, Mills & Allen mortgaged the property covered by the first policy for $ 500; and on the 23d day of February, 1888, Clark placed a mortgage upon his building and the land described in his policy for $ 480.50; and on the 21st day of April, 1888, he gave another mortgage for $ 2,234 upon the same property.
On the 2d day of November, 1888, the property described in both policies was wholly destroyed by fire. At the time of the fire all of the mortgages mentioned were existing liens upon the property described in the respective policies. Printed upon the first page of the policies issued were the by-laws of the insurance company, one of which provided:
"Each and every policy issued by this company shall be absolutely null and void in any and every of the cases following, to wit: . . . Third, When there shall be any change in the title, ownership or possession of any buildings insured, or land upon which such building is situated, or premises containing any subject insured, or said subject or any item thereof shall become incumbered by any lien, judgment, attachment, or otherwise, or when the interest of the assured in said subject or any item thereof shall be or become other or different from that stated in the application for insurance."
On the face of the policies the following reference is made to the by-laws and the applications of the insured:
"And it is hereby mutually understood and agreed by and between this company and the assured, that this policy is made and accepted in reference to the by-laws of this company, a copy of which is given on the first page of this contract; to the application of the assured, a copy of which is given on the second page of this contract; and the conditions herein expressed and referred to, all of which are hereby declared to be a part of this contract, and are to be used and resorted to in order to determine the rights and obligations of the parties hereto, in all cases not otherwise specially provided for in writing."
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