Gibb v. Fire Ins. Co. of the Cnty. of Phila.

• Citation: 61 N.W. 137,59 Minn. 267
• Parties: GIBB ET AL. v. FIRE INS. CO. OF THE COUNTY OF PHILADELPHIA.
• Decision Date: 06 December 1894
• Court: Minnesota Supreme Court

59 Minn. 267

61 N.W. 137

GIBB ET AL.

v.FIRE INS. CO. OF THE COUNTY OF PHILADELPHIA.

Supreme Court of Minnesota.

Dec. 6, 1894.

(Syllabus by the Court.)

1. A fire insurance policy provided that it should be void if any change took place in the interest of the insured, whether by voluntary act of the insured or otherwise. Held, an executory agreement to convey the insured premises, under which the vendee took possession, and paid a part of the purchase price, is a breach of this condition, and rendered the policy void.

2. “Interest” and “title” distinguished. The word “interest” is broader than the word “title,” and includes both legal and equitable rights.

Appeal from district court, Hennepin county; Robert D. Russell, Judge.

Action by Collin Gibb and others against the Fire Insurance Company of the County of Philadelphia on a fire insurance policy. From the part of the judgment in favor of plaintiff Gibb, defendant appeals. Reversed.

Kitchel, Cohen & Shaw, for appellant.

Fred W. Reed, for respondents.

CANTY, J.

On February 29, 1892, the plaintiff Gibb was the owner in fee simple of the premises in question, subject to a mortgage of $1,200, held by the plaintiff Hilles. On that day defendant issued a policy of insurance insuring Gibb to the amount of $2,000, for three years from and after that day, against loss by fire to the buildings on the premises, loss, if any, payable to Hilles as her interest may appear; but providing that if, in case of loss, the insurer is not liable to the mortgagor or owner, it shall be subrogated to the rights of the mortgagee under her mortgage, and, upon paying the full amount due on the mortgage, shall receive an assignment of it. This mortgage clause also provided that the policy should not be invalidated as to the mortgagee by any act of the owner, or by any change in the title or ownership of the premises. On February 28, 1893, there was a loss by fire amounting to $1,462.62. The plaintiffs brought this action to recover this loss. The case was tried by the court without a jury, and judgment was ordered in favor of Hilles for $1,200, the amount of her mortgage, and in favor of Gibb for the balance of said amount of the loss. From the judgment entered thereon, defendant appeals.

The appellant concedes that the plaintiff Hilles is entitled to recover, but contends that a breach occurred, prior to the fire, which avoided the policy as to Gibb; that he is not entitled to recover; and that defendant is entitled, on payment to Hilles of the amount of her mortgage, to be subrogated to her rights under the mortgage. The policy contains the following provisions: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall...