Home Mutual Fire Ins. Co. v. Pittman

• Decision Date: 15 May 1916
• Docket Number: 17856
• Citation: 71 So. 739,111 Miss. 420
• Court: Mississippi Supreme Court
• Parties: HOME MUTUAL FIRE INSURANCE COMPANY v. PITTMAN

71 So. 739

111 Miss. 420

HOME MUTUAL FIRE INSURANCE COMPANY v. PITTMAN

No. 17856

Supreme Court of Mississippi

May 15, 1916

APPEAL from the circuit court of Yalobusha county, HON. J. B ECKLES, Judge.

Suit by N. A. Pittman against the Home Mutual Fire Insurance Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Case reversed, and suit dismissed.

McLaurin & Aemistead, and T. G. Birchett, for appellant.

Greekmore & Stone, for appellee.

OPINION

POTTER, J.

This was a suit begun by N. A. Pittman, appellee, in this court plaintiff in the court below, against the Home Mutual Fire Insurance Company, appellant here and defendant in the court below.

The defendant was a mutual fire insurance company, and, upon appellee's request, insured, in one policy, two dwelling houses belonging to the appellee dwelling house No. 1 was insured for four hundred dollars and dwelling house No. 2 for six hundred dollars. Dwelling house No. 2 was destroyed by fire on the 28th day of June, 1912 and the appellant filed his suit in the circuit court to recover on the policy. It developed, after the fire, that the house destroyed was situated on land not owned by appellee but by his wife. The said house, the uncontradicted facts show, was built thereon permissively and without understanding or agreement between the appellee and his wife, and was occupied by their son as a residence. The defendant denied liability and tendered the premium, which tender was refused.

The policy in question contains the following clause:

"If there is, or shall be, other prior, concurrent, or subsequent insurance, whether valid or not, on said property, or any part thereof, without the company's written consent, or if said building, or either of them, now is or shall become vacant or unoccupied, or if the hazard become increased in any way, whether under the control and knowledge of the member, or not, or if the property or any part thereof shall be sold or conveyed, or if the property insured now is, or shall become, incumbered by mortgage or otherwise, or any change takes place in the title, occupation or possession thereof whatsoever, or if foreclosure proceedings shall be commenced, or if the interests of the member in said property, or any part thereof, now is, or shall become, any other or less than a perfect legal and equitable title and ownership, free from all liens whatsoever, except as stated in writing hereon, or if the buildings or either of them stand on leased ground (or land of which the assured has not a perfect title), or if this contract shall be assigned without the company's written consent hereon, then, and in any such case, this contract shall be absolutely null and void."

The defendant filed the plea of general issue, and gave notice thereunder setting out the above clause of the policy sued on, and offered to prove that the provisions of the policy sued on were violated by the plaintiff in that the interest of he plaintiff was not, at the time of the issuance of the policy, a perfect, legal, and equitable title of ownership of the property sued for, free from all liens whatsoever, and that the building, the object of the suit, stood on leased land, or land of which the assured had not a perfect title on account of which the policy sued became absolutely null and void. The plaintiff relied on another clause in the policy as contradictory of the clause above quoted and relied upon by the defendant. That clause is as follows:

"In case the interest of the member in said property is not the sole, absolute and unconditional unincumbered ownership thereof, both in law and in equity, this company shall not be liable to the member by virtue of this contract for any sum exceeding the actual cash value of the interest of the member at the time of the loss after deducting from the actual cash value of said property the amount and value of all outstanding rights, interests and incumbrances thereon, but in case this...