Groce v. Phoenix Ins. Co.

• Decision Date: 15 February 1909
• Docket Number: 13,405
• Citation: 48 So. 298,94 Miss. 201
• Court: Mississippi Supreme Court
• Parties: WILLIAM B. GROCE v. PHOENIX INSURANCE COMPANY

48 So. 298

94 Miss. 201

WILLIAM B. GROCE v. PHOENIX INSURANCE COMPANY

No. 13,405

Supreme Court of Mississippi

February 15, 1909

FROM the circuit court of Pike county, HON. MOYSE H. WILKINSON Judge.

Groce the appellant, was plaintiff in the court below, and the insurance company, appellee, was defendant there. From a judgment in the defendant's favor plaintiff appealed to the supreme court.

The opinion of the court sufficiently states the facts.

Reversed and remanded.

R. W Cutrer, for appellant.

Was the plaintiff at the time of the issuance of the policy, owner of the realty whereon the saw mill plant was located to the extent that he could legally institute and maintain this suit? It cannot be denied that plaintiff was in no way guilty of any fraud or wrongdoing, and that, from the time the policy was issued to the time of the fire he had taken reasonably prudent steps to protect the plant. And it is likewise undeniable that Groce never in any way misrepresented anything of a material nature relative to the risk. The fact that he had received from his wife, prior to the issuance of the policy, a warranty deed to the realty from his wife, which deed had not been placed of record, in no way changes matters in so far as the insurance company's liability is concerned.

The creditors and purchasers referred to in Code 1906, § 2522 (Laws 1900, ch. 90, p. 130) are those from the grantor in the instrument concerned, and the statute is intended to protect, third parties dealing directly with the grantor. No creditors of Mrs. Groce, the grantor, are here complaining. Sessons v. Reynolds, 7 Smed. & M. 153; Dixon v. Cook, 47 Miss. 226; Carlisle v. Fendall, 49 Miss. 229; Loughbridge v. Bowland, 52 Miss. 558; Chaffe v. Halpin, 62 Miss. 1; Green v. Weems, 85 Miss. 566, 38 So. 551; George's Miss. Dig. 654 art. 14; Morris v. Rucks, 62 Miss. 76.

In a case construing an insurance policy containing the clause that: "If the interest of the assured in the property be other than an absolute fee-simple title it must be so represented to the company and expressed in the policy, else it will be void," this court held that such condition will not affect the right of the assured to recover on the contract of insurance if he has the sole beneficial ownership of the insured property, even though there may be a technical defect in his deed or an outstanding naked legal title held by another. Liverpool, etc., Ins. Co. v. McGuire, 52 Miss. 227. And, as reiterating this, see also Phoenix Ins. Co. v. Bowdre, 67 Miss. 620, 7 So. 596, 19 Am. St. Rep. 326.

It is undeniable that plaintiff is the only person having any sort of interest in or claim of ownership upon the insured property. 1 Wash. Real Prop. 66, 67. May on Insurance, 289; Woods on Fire Insurance, 195, 196, 560.

Alexander & Alexander, on the same side.

Under the circumstances Code 1906, § 2522, is not here applicable. The term, "third person" in the statute refers only to persons in a position to be prejudiced by the secret conveyance or transfer. Here nobody except the insured or his wife could be the real owner of the property. She had conveyed to him, hence could not legally set up claim of title against him. Hence, as she had parted with her title to her husband, the insurance company could in no way be prejudiced. All that the insurance company can demand is to know that the insured is actually the true owner. Imperial Fire Insurance Co. v. Dunham, 117 Pa. 460, 2 Am. St. Rep. 686.

Price & Whitfield, for appellee.

As the land upon which the insured mill plant was located was in law the property of Mrs. Groce, in so far as appellee and other third parties were concerned, the contract of insurance was void. The policy distinctly avers that it shall be void if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee-simple.

That appellant's ownership was not absolute, under Code 1906, § 2522, is shown by the following excerpt from the testimony of appellant: "(Q.) Who is the owner of this land where the mill-plant was located? (A.) Mrs. J. B. Groce, my wife. She bought from Jesse Simmons. (Q.) Did you secure a title to this land at any time? (A.) I did before the machinery was located on the land. (Q). Where is that deed now? (A.) I cannot tell you. (Q.) When was that deed made? (A.) A few days prior to the purchase of the machinery. (Q.) Was it ever recorded? (A.) No, sir. (Q.) Who took the acknowledgement? (A.) It was not acknowledged. We did not think it necessary, being a family affair."

It is shown by the evidence, and without contradiction, that Groce, the appellant, had never said a word to any one outside of his family about his wife's deed to him. Hence, under Code 1906, § 2522 (Laws 1900, p. 130, ch. 90), the land must be held to still belong to Mrs. Groce in so far as the appellee is concerned.

Accordingly the court below properly granted the peremptory instruction in favor of the insurance company. Elliott on Insurance, 257; Liverpool, etc., Ins. Co. v. Cochran, 77 Miss. 348, 26 So. 932; 19 Cyc. 689, 690, 691; Rosenstock v. Miss. Home Ins. Co., 82 Miss. 674, 35 So. 309; Montgomery v. Scott, 61 Miss. 409.

Argued orally by R. W. Cutrer and C. H. Alexander, for appellant and by Garland Q. Whitfield, for appellee.

OPINION

FLETCHER, J.

This appellant, having insured certain sawmill property in the Phoenix Insurance Company and sustained a loss by fire, brought suit on the insurance contract. On the trial many defenses were interposed, presented by a variety of pleas and notices; but the course of the pleading and the evidence offered have eliminated from consideration every question except one, arising under section 2522 of the Code of 1906, which question may be thus stated: The policy of insurance contained the familiar stipulation to the effect that the policy should be void if "the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee-simple." On the trial of the case it developed that the land upon which the sawmill was located had been deeded to appellant's wife, and there was no conveyance of record divesting her title. It being clear, so far as the recorded deeds disclosed that the above-quoted stipulation in the policy had not been observed, the plaintiff, upon being reintroduced, testified that some days before the contract of insurance was effected, his wife had executed to him a deed conveying the title to the land in fee-simple, but that this deed had never been acknowledged or filed for record.

It was insisted on behalf of the insurance company that this. deed is void under section 2522, of the Code of 1906, and, the circuit judge agreeing with this contention, a peremptory instruction was given for the defendant company. We desire to say in the outset that we unhestitatingly construe the agreement entered into by the parties at the second trial as submitting to the court only the question as to whether a peremptory instruction should have been given on the facts developed in the first trial, and decline to give this agreement the effect which would follow if both the law and the facts had been submitted to the court for decision. The statute in question reads as follows:

"What Necessary to Validity of Conveyance. --A transfer or conveyance of goods and chattels, or lands, or any lease of lands, between husband and wife, shall not be valid as against any third person, unless the transfer or conveyance be in writing and acknowledged and filed for record as a mortgage or deed of trust is required to be; and possession of the property shall not...