Hawkeye Ins. Co. v. Erlandson

• Decision Date: 18 December 1891
• Citation: 50 N.W. 881,84 Iowa 193
• Parties: HAWKEYE INSURANCE COMPANY, Appellee, v. JOHN ERLANDSON, Appellant
• Court: Iowa Supreme Court

50 N.W. 881

84 Iowa 193

HAWKEYE INSURANCE COMPANY, Appellee, v. JOHN ERLANDSON, Appellant

Supreme Court of Iowa, Des Moines

December 18, 1891

Appeal From Polk District Court.-HON. CHARLES A. BISHOP, Judge.

ACTION originally brought before a justice of the peace upon two promissory notes. There was an appeal to the district court and a judgment therein on a verdict for the plaintiff rendered under direction of the court. The defendant appeals.--Dismissed.

Appeal DISMISSED.

Olvin Bros. & Tilson and J. J. & H. E. Long, for appellant.

George R. Sanderson, for appellee.

OPINION

BECK, C. J.

I. In defense to the action the defendant pleaded that the promissory notes were given for the premiums upon a policy of insurance issued by the plaintiff to the defendant, which contains conditions that it should be "null and void" if the interest of the assured in the property covered by the policy was not absolute and unqualified unless otherwise specified in the policy; that it is based upon the application for the insurance, which is to be taken as a part of the policy, and as a warranty of the assured and that any false or untrue statements therein render the policy "null and void;" and that the policy contained a statement that the assured was the absolute and undisputed owner of the land and the property insured. The defendant alleges that he was not the absolute and unqualified owner, but that his brother owned an undivided one half of the property, and that, as the notes sued upon were based upon the policy, which, under its conditions, is "null and void," the notes in suit are without consideration, and recovery therefore cannot be had on them. After the introduction of evidence by the parties and the submission of the case, the court directed the jury to return a verdict for the plaintiff, which was done and a judgment rendered thereon. The amount in controversy being less than one hundred dollars, the case was brought by appeal to this court, as required by statute, upon the following certificate of the judge of the court below:

"I Chas. A. Bishop, judge of the district court of Polk county, Iowa, and before whom the above cause, with a jury, was tried, do hereby certify that said cause involves the determination of questions of law upon which it is desirable to have the opinion of the supreme court, which questions of law are as follows, to wit: First. Where the defendant makes an application in writing for insurance, and executes his promissory notes for the premium, and in the application he states that he is the absolute owner of the property to be insured, and that the same is free from incumbrance, suit is brought upon the notes, and the evidence shows that defendant was not at the time he made such application and executed said notes the absolute and unqualified owner of the whole of the premises sought to be insured, but that his interest was that only of an undivided half interest therein, the other part owner in said premises being in no manner concerned in the making of such application, and did not sign the same, nor did he execute either of the notes. The evidence also shows that there were incumbrances on said property, which incumbrances were not referred to or stated in the application. It does appear in evidence that at the time the defendant made the application and signed the notes in question he informed the agent of the plaintiff company, who solicited and took the application and notes, of the condition of the title of the property insured, and it appears that the defendant did not intend to perpetrate any actual fraud upon the plaintiff company in making said application. Immediately after the making of such...