Johannes v. Standard Fire Office of London

• Decision Date: 22 November 1887
• Citation: 35 N.W. 298,70 Wis. 196
• Parties: JOHANNES v. STANDARD FIRE OFFICE OF LONDON AND OTHERS.
• Court: Wisconsin Supreme Court

70 Wis. 196

35 N.W. 298

JOHANNES

v.STANDARD FIRE OFFICE OF LONDON AND OTHERS.

Supreme Court of Wisconsin.

November 22, 1887.

Appeal from circuit court, Eau Claire county.

Geo. C. Teall & Son, for respondent.

L. M. Vilas, for appellants.

COLE, C. J.

The defense is based upon alleged breaches of the conditions in the policy, which it is claimed exonerate the defendants from all liability for the loss. The policy provided it should be void if there was “any omission to make known every fact material to the risk,” and “if the interest of the assured in the property be other than the entire, unconditional, and sole ownership of the property for the use and benefit of the assured, or if the building insured stands on leased ground, it must be so represented to the company and so expressed in the written part of the policy, otherwise the policy to be void.” It is said the facts proven on the trial show a breach of these conditions. There is really no disagreement about the material facts of the case.

It appears that the plaintiff applied to the local agent of the Standard Company for insurance about the first of July, 1883. At this time he had possession of the realty on which the building and insured property were situated, under a land contract upon which he had paid $100; $200, the balance of the purchase price, became due and was paid after the policy was issued. The improvements on the land were of greater value than the insurance. The policy was issued and remained in the hands of the agent until the land was paid for and a warranty deed obtained, which was in August, 1883. The plaintiff received the policy from the agent in October following. There was no written application made for insurance, and no representations made, or question asked as to plaintiff's title or interest in the land or building; nothing was said upon that subject. The agent testified that he did not know what the plaintiff's title was in the land or that he held it under a contract of purchase. The plaintiff, however, testified that when he made application for insurance he showed the agent the contract, who took it to obtain a description of the land on which the insured building was situated; and, in answer to a question submitted, the jury found that such was the fact. It is plain, therefore, that the agent had the means of information as to plaintiff's interest in the realty before him, and it is almost incredible that he did not know what his title was. Under the circumstances, the plaintiff cannot be justly charged with an omission to make known the fact that he held the land under a contract for the purchase thereof. We do not dwell upon these facts, nor express any opinion as to how they would affect the liability of the company, providing it was made to appear that the plaintiff was not the sole and unconditional owner of the entire interest in the property within the meaning of the condition relied on. But if the plaintiff is held to the exact language of the condition, which it is perfectly clear he never saw until long after the policy was issued, still the evidence shows that his interest in the property was an entire, unconditional, and sole ownership. He was the real owner of the property in equity and for all purposes of insurance. The condition does not relate to a legal title in fee-simple nor is that the interest described. An equitable title, if sole and unconditional, answers the description fully, and if the property was destroyed the entire loss would fall upon the plaintiff. There is no ground, therefore, for saying there was a misdescription of the nature of the plaintiff's interest in the property. If the company deemed it material that the state of the legal title should be described, it doubtless would have framed the language to call for that information. But it did not. The interest of the plaintiff satisfies the condition as we construe it, as he was in possession and was the sole equitable owner. In the absence of any specific inquiry by the insurers, or express stipulation in the policy, no particular description of the nature of the insurable interest is necessary. Strong v. Insurance Co., 10 Pick. 40;King v. Insurance Co., 7 Cush. 13;Insurance Co. v. Brown, 43 N. Y. 389. But the question before us seems to be settled by the adjudications. In Hough v. Insurance Co., 29 Conn. 10, an applicant for insurance had described the property in a written application as “his house,” and it was so described in the policy. The policy contained the condition “if the interest in the property to be insured is not absolute it must be so represented to the company, and expressed in the policy in writing; otherwise the insurance shall be void.” The legal title to the property was in another party, with whom the insured had, at the time of the application, made a parol contract for its purchase, for a price agreed upon, which the insured had agreed absolutely to pay, and a part of which he had paid, and the...