Home Ins. Co. of New York v. Mendenhall

• Decision Date: 19 January 1897
• Citation: 45 N.E. 1078,164 Ill. 458
• Parties: HOME INS. CO. OF NEW YORK v. MENDENHALL.
• Court: Illinois Supreme Court

164 Ill. 458

45 N.E. 1078

HOME INS. CO. OF NEW YORK

v.MENDENHALL.

Supreme Court of Illinois.

Jan. 19, 1897.

Appeal from appellate court, Third district.

Action by J. A. Mendenhall against the Home Insurance Company of New York on a fire insurance policy. From an affirmance of a judgment in favor of plaintiff (64 Ill. App. 30), defendant appeals. Affirmed.Patton, Hamilton & Patton, for appellant.

Connolly, Mather & Snigg, for appellee.

This is a suit on an insurance policy, brought by J. A. Mendenhall On the 27th day of October, 1889, J. A. Mendenhall procured from W. S. Rearick, the agent of the Home Insurance Company at Ashland, Ill., a policy of insurance on two dwelling houses and certain household goods situated near Pleasant Plains, in Sangamon county, Ill., aggregating in amount some $5,300. The agent of the company wrote up the policy on the ordinary blanks in use by his company, filling in the blank spaces with the data supplied by Mendenhall. As is usual in such policies, the conditions of the insurance were printed on the face and back of the instrument. Among these conditions were the following: ‘(1) * * * If the above-mentioned premises shall be occupied or used so as to increase the risk, or become vacant or unoccupied without notice to and consent of the company in writing, * * * or if the interest of the assured in the property, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee, or otherwise, be not truly stated in this policy, * * * then and in every such case this policy shall be void. * * * (4) If the interest of the assured in the property be any other than the entire, unconditional, and sole ownership of the property, for the use and benefit of the assured, or if the buildings stand on leased ground, it must be so represented to the company, and so expressed in the written part of the policy; otherwise the policy shall be void. * * * (9) * * * All fraud or attempt at fraud, by false swearing or otherwise, shall cause a forfeiture of all claim on this company under this policy. * * * And it being hereby understood and agreed by and between this company and the assured that this policy is made and accepted in reference to the foregoing terms and conditions, and to the class of hazards and memoranda printed on the back of this policy, 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 herein otherwise specifically provided for in writing.’ On the night of March 5, 1894, the buildings decribed in this policy were destroyed by fire. Appellant having refused payment under the policy, this suit was begun in the circuit court of Sangamon county. To the declaration,which is in the usual form, the defendant pleaded the general issue, and five special pleas. The first of these alleged that the building was vacant and unoccupied, contrary to the terms of the policy. The second set up a clause in the policy whereby a forfeiture was declared in case the interest of the assured was not truly set out in the policy. The third set up a clause declaring a forfeiture in case the interest of the assured was other than that of unconditional and sole ownership. The fourth set up a clause forfeiting the policy in case of fraud or false swearing, and alleging that the plaintiff swore falsely in making proofs of loss on the occasion of a previous fire, by which another building included in the policy had been destroyed. And the fifth was a formal plea of set-off, under which the defendant proposed to recover back the money paid to plaintiff on the former loss, because of the alleged false swearing in making the proofs, as averred in the fourth plea. Replications were filed, and the issues were submitted to the court, a jury being waived. It appears from the evidence: That the plaintiff was, at the time he made the application, in possession and control of the property. That he then resided upon an adjacent tract of land, which had also been placed in his possession and control by his father, who held the legal title. The father, desiring that the plaintiff should have as much land as his brother, had bought the property in question at a master's sale a few days before the application was made; and, though he had not then received a deed from the master, he caused the plaintiff to be then possessed. That possession continued thereafter, it being the understanding between the father and the plaintiff that the latter was to have the property. The father so provided in his will, which was made, as the evidence tends to show, previous to this application. It was the understanding between the father and the appellee that this land, as well as the other tracts, was to be the appellee's, and he had full control of the same, and treated it as though he had the absolute title thereto. The facts as to his interests were stated to the agent through whom the insurance was effected, and he was not misled as to the condition of the title. Appellee had entire possession, with the exclusive use and enjoyment, and a reasonable expectation of becoming the owner in fee. The building burned was occupied by a tenant whose term was to expire on March 1st, and appellee had rented it to another tenant, who was ready to enter. The old tenant held over until Friday afternoon, March 2d. The next day the new tenant went into the house, and did some cleaning; and on Monday he placed some of his furniture in the house, put up a stove, and made a fire therein, but, by reason of rain, did not complete his move that day. That night the fire occurred. In the trial before the circuit court, 10 propositions of law were submitted by appellant, some of which were held, and some refused. The court found the issues for plaintiff, and rendered judgment for $1,500. On appeal to the appellate court this judgment was affirmed, and from that judgment this appeal is prosecuted to this court.

PHILLIPS, J. (after stating the facts).

Three propositions are presented and argued by appellant, urging the reversal of the judgment of the appellate court: (1) That appellee had no insurable interest in the property burned at the time the policy was issued; (2) that the premises were vacant, within the meaning of the clause in the policy relating thereto, at the time they were destroyed; (3) that appellee, in making proofs of loss as to a fire which occurred about four years previous, falsely swore that he was the owner in fee of the premises, wherefore, under the policy, he is barred of recovering in this case. All these propositions are ably argued by counsel for appellant, and any one of them, if sustained, would defeat a recovery under this policy.

At the time of the issuance of the policy herein, the 80 acres of land on which these buildings were located had been purchased by the father of appellee at a master in chancery sale in partition; but the 20 days provided by our statute to intervene between the filing of the master's report and the confirmation thereof had not elapsed, so that no deed had been issued. The presumption, however, is that the father of appellee had complied with the usual decree entered in such cases, and paid to the master a part or the whole of the purchase money, as the decree might provide, and at the expiration of 20 days, if no exceptions were filed to the report, he would receive a deed from the master. Meanwhile, if the buildings burned, the loss would fall on him. His title, it is true, at the time was one in expectancy, but, under certain conditions, was sure to ripen into one absolute. Where the title of one is such, though not in fee, that he would suffer a loss or damage by the destruction of the premises, he may protect his interest, whatever may be the nature of it, by insurance, and thus it follows that an insurable interest is not always a fee-simple title. It appears from the evidence in this case that the father bought the land for appellee, and so at once informed him. He placed appellee in possession, so that he received the rents and profits, and at once informed him that he had made a will devising these premises to him. Appellee took possession as an heir expectant, and paid taxes, and exercised all acts of ownership over the land. The father had two sons. The other son, by the will, was devised 240 acres, and this 80 was intended by the father to make both sons equal, so that appellee had a reasonable expectancy of inheriting and becoming the owner in fee. In Wood, Ins. § 266, it is said: ‘It is not necessary that the insured should have either a legal or equitable interest, or indeed any property interest, in the subjectmatter insured. It is enough if he holds such a relation to the property that its destruction by the peril insured against involves pecuniary loss to him, or those for whom he acts. It need not be an existing jus in re, nor jus ad rem.’ Again, in section 268, the same author says: ‘The interest need not be vested. It is sufficient if it exists at the time of the insurance and loss, though contingent, and liable never to attach or be perfected by occupancy or possession,’ and, quoting from a leading case, he adds that: ‘The contract of insurance is applicible to protect men against uncertain events which may in any wise be...