Fulbright v. Phoenix Ins. Co. of Hartford

• Decision Date: 29 July 1930
• Docket Number: 4691
• Citation: 30 S.W.2d 870
• Parties: FULBRIGHT v. PHOENIX INS. CO. OF HARTFORD.
• Court: Missouri Court of Appeals

30 S.W.2d 870

FULBRIGHT v. PHOENIX INS. CO. OF HARTFORD.

No. 4691

Court of Appeals of Missouri, Springfield

July 29, 1930

Rehearing Denied Sept. 12, 1930.

Appeal from Circuit Court, Greene County; Warren L. White, Judge.

Action by J. H. Fulbright against the Phoenix Insurance Company of Hartford. Judgment for plaintiff, and defendant appeals.

Affirmed.

COX P. J., dissenting.

Sturgis & Henson, of Springfield, for appellant.

Durst & Durst and James L. Hornbostel, all of Springfield, for respondent.

OPINION

BAILEY, J.

This is a suit based on a fire insurance policy issued by defendant to plaintiff covering loss by fire on a house, barn, and other buildings located on a farm. The petition was in conventional form, setting forth that the policy was issued February 20, 1928, insuring plaintiff’s buildings in various amounts, therein stated, and that on April 17, 1928, while said policy was in force, said dwelling house and barn were destroyed by fire. It was further alleged that defendant denied all liability under said policy, and judgment was asked for $1,875 on said dwelling house and $1,000 on the barn.

The real issues were made by the answer and reply. In defendant’s answer it was alleged that a certain provision of the policy, material to the risk, was violated, viz., one requiring plaintiff to be the unconditional and sole owner of the property insured. It is charged that the title to the real estate on which the buildings were located was vested in J. H. Fulbright, the plaintiff, and F. D. Fulbright, his wife, as tenants by the entirety; and that this policy, as well as a policy previously issued, of which the present policy was a renewal, never went into force and effect, but were thereby made void.

The answer further sets up that in February, 1928, plaintiff entered into a valid written agreement binding himself to sell to one W. J. Alexander the said land and buildings alleged to have been insured; that Alexander held possession of said lands as purchaser thereof at the time of the fire, and, by reason of said purchase contract and possession thereunder, he acquired an interest in said land and buildings, whereby a change took place in the interest of insured in violation of the terms of the policy, rendering same null and void for that reason. The answer further alleged that, upon learning of such facts for the first time, after the fire, it offered to pay and tendered plaintiff the premium paid, which offer was refused, and defendant then paid such amount into court.

The reply alleged that plaintiff paid the full purchase price for said land with his own money, and that the policy was not voided by reason of the deed being made to plaintiff and his wife, jointly; that, "the deed was not made as a gift or advancement or intended as such to plaintiff’s wife, but merely a holding of convenience; that said joint deed made no material difference in the risk whatsoever or created such a hazard as to require an increase in the premium or one that would have been refused by the defendant company, and that at the time said policy was issued, the defendant knew the true ownership of said property and so knowing should have written the policy accordingly; that said policy was in the possession of the defendant from its execution until after the loss alleged in plaintiff’s petition and plaintiff did not know that it was written in his name only until after the fire."

It is further alleged that the policy sued on was not a renewal of a former policy; that "on February 20, 1928, long after said former policy expired, the defendant executed the policy sued on as a new policy through its local agents to this plaintiff upon verbal application at that time; and that the defendant had full knowledge of the character of said property, the title thereto, the physical risk as well as the moral risk and standing of the plaintiff as well as his wife, F. D. Fulbright, and that defendant, knowing such facts, executed said policy as it desired, and it was its duty to make such endorsements upon said policy as were proper and right; and that no unusual or unreasonable risk was taken by defendant on account of the ownership of said property and defendant knew that plaintiff had an insurable interest as owner in said property."

The reply further denied any change of title by reason of the Alexander contract, but that Alexander completely failed to comply with any essential parts of the contract of sale, and that defendant, at the time it wrote the policy sued on, had full knowledge of the existence of said Alexander contract, and the policy was not thereby invalidated.

Upon the issues thus made trial was had before the court without a jury, resulting in a judgment for plaintiff, from which judgment defendant has appealed.

According to defendant’s brief, its demurrer to the evidence should have been sustained, because the evidence showed that the two provisions of the insurance contract, heretofore mentioned, were violated, thereby rendering the policy void. The first provision was that the policy should be void if the insured was not the sole and unconditional owner of the property or if he did not own the fee-simple title to the land. There is no question but that, on the face of plaintiff’s deed, he and his wife held title to the property in question jointly, as tenants by the entirety. In the absence of any other facts, this, we think, would constitute a material misrepresentation in violation of the terms of the policy aforesaid. The note to the case of Western Assurance Company v. White (Ark.) reported in 48 A. L. R. page 349, 353, reviews the authorities on this question and states the rule to be as follows: "It may be stated generally that a tenant by the entirety is not the sole and unconditional owner of the property within the meaning of a provision of the insurance policy that it should be void ‘if the interests of the insured be other than unconditional and sole ownership,’ especially where the assured has knowingly misrepresented his interest in the property insured."

Among the cases cited in support of the foregoing text is that of Turner v. Home Ins. Co., 195 Mo.App. 138, 189 S.W. 626, 628. In that case this court laid down the rule that, where the insured held title jointly with his wife as a tenant by the entirety, he was entitled to recover on a fire insurance policy containing a provision that insured be the sole and unconditional owner, where the evidence showed that plaintiff purchased the real estate with his own funds and the deed was made to him and his wife jointly by mistake, without his knowledge and contrary to his express directions. The court, however, stated the law in this state to be that "it is sufficient to satisfy the requirements of sole and unconditional ownership in insurance policies that the insured is the sole equitable owner and has the full equitable title." Following the Turner Case this court went a step farther and held that where the evidence showed the insured purchased the property with his own means, but took the title in his own and in his wife’s name, in the belief that, if the deed were so made, in the event of his death first, such deed would save the expense of administration, the equitable title was in plaintiff and the sole ownership clause was not violated. Monpleasure v. Home Insurance Co., 214 Mo.App. 530, 259 S.W. 815.

The facts in the Monpleasure Case are practically the same as in the case at bar. Plaintiff testified that he paid the purchase price of the land upon which the insured buildings were located and Mrs. Fulbright furnished no part thereof; that he had the deed made to himself and wife jointly, so that, in case of either his death or that of his wife, the land would go to the other party without further trouble; that he believed that by so doing the land was his as long as he lived, and, if he died, the land would be hers, but he intended to place no title in Mrs. Fulbright during his lifetime; that he believed he was the sole and unconditional owner at the time the policy was issued; that Mrs. Fulbright never received any of the rents or profits from the property and paid out no money for expenses, upkeep, or taxes. Unless we depart from the ruling in the Monpleasure Case, supra, this evidence tended to establish a resulting trust in favor of plaintiff, thereby placing in him the equitable title, which was a sufficient compliance with the ownership provision of the policy. We perceive no reason for departing from the rule adopted in the Monpleasure Case. There is abundant authority to the effect that, if one person pays for land solely out of his own means and has title taken in the name of another, unless a different intent be shown, a resulting trust arises for the benefit of the party who pays for the land. So, too, the presumption that, when a deed is caused to be made by a husband (who has paid the consideration) to his wife, such conveyance was intended as a settlement upon his wife, may be overcome where all the facts and circumstances show that no such settlement was intended. Thierry v. Thierry, 298 Mo. 25, 249 S.W. 946, loc. cit. 952; Price v. Kane, 112 Mo. 412, 20 S.W. 609; Clark v. Clark (Mo. Sup.) 18 S.W.2d 77. The evidence seems to indicate that at the very time the deed was made to plaintiff and his wife he had no intention of conveying any present interest to her, and believed she had no present interest. The case at bar appears to fall within the rule of the Monpleasure Case and we therefore decide this point against defendant.

It further appears from the evidence that on February 17, 1928 plaintiff entered into a certain executory written contract by the terms of which he undertook to sell the land in question to one W. J....