Johnson v. Williamsburgh City Fire Ins. Co.

• Decision Date: 05 March 1918
• Docket Number: No. 14757.,14757.
• Citation: 205 S.W. 226
• Parties: JOHNSON et al. v. WILLIAMSBURGH CITY FIRE INS. CO.
• Court: Missouri Court of Appeals

205 S.W. 226

JOHNSON et al. v. WILLIAMSBURGH CITY FIRE INS. CO.

No. 14757.

St. Louis Court of Appeals. Missouri.

Argued and Submitted February 6, 1918.

Opinion Filed March 5, 1918.

Rehearing Denied July 24, 1918.

Appeal from Circuit Court, Lincoln County; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Action by Rufus W. Johnson and others against the Williamsburgh City Fire Insurance Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Sutton & Huston, of Troy, and Bruce Barnett, of Kansas City, for appellant. R. H. Norton, Avery & Dudley, and Creech & Penn, all of Troy, for respondents.

REYNOLDS, P. J.

This is an action by Rufus W. Johnson, as owner of the property covered by the insurance policy upon which the action is founded and by R. H. Norton and Nim R. Long, Mr. Norton being the trustee in a deed of trust securing a note for $125 issued to Mr. Long and entitled to an amount in case of loss to the extent of his interest. The fire occurred on November 4th, 1913, while the policy was in force, destroying the dwelling house and its contents, situated near Troy, in Lincoln County. The policy was for $600 on the building and $200 on the personal property in the building. The amount of the policy and interest, as also damages and attorney's fee for vexatious delay, are claimed.

The answer denies that the dwelling house and the property were of the value claimed; denies that at the time of the fire alleged in the petition the plaintiffs had an interest in the property insured to an amount equal to the amount of the insurance, and denies that at the time of the fire alleged in the petition plaintiff Rufus W. Johnson was the owner of the property, and denies that the policy was in force at the time of the fire, or that defendant is indebted to plaintiff in any sum by reason of the policy or of the fire, and denies that the defendant wilfully or vexatiously, or without reasonable cause, failed or refused to pay the policy or any part thereof. It is further set up in the answer as a defense that by the policy it is provided that it shall be void in case of any fraud or false swearing by the insured touching any matter relating to the insurance or the subject thereof, whether before or after the loss, or if the interest of the insured be or become other than the entire unconditional and sole ownership of the property insured, or if the building insured is on ground not owned by the insured in fee simple, or if any change other than by the death of the insured takes place in the interest or title of the subject of the insurance by voluntary act of the insured or otherwise. It is then averred that at the time of the fire plaintiffs were not the entire, unconditional and sole owners of the dwelling house described in the policy, and that the ground upon which it was situated was not owned by the insured in fee simple; that plaintiff Long had no interest or title in the building or ground except as holder of a note secured by deed of trust upon the property; that plaintiff Johnson had no title or interest in the building or ground other than the right to receive one-half of the proceeds which should arise under a sale of the property, after paying out of the proceeds of the sale the amount due under the deed of trust existing against the property in favor of plaintiff Long and to pay out of such proceeds of sale all taxes and other liens existing against the property, and that the legal title to the property was at the time of the fire in plaintiff Norton; that on October 29th, 1913, plaintiff Rufus W. Johnson and one Minnie Johnson made and entered into a certain instrument of writing, signed by each of them, whereby it was agreed between them that for a valuable consideration passing from Minnie Johnson to plaintiff Johnson, namely, for the release and satisfaction of a certain judgment existing in favor of Minnie Johnson against Rufus W. Johnson and the settlement of all property rights between them, Norton, as the trustee, should sell the real estate described in the petition and in the policy sued upon under the terms of the deed of trust existing thereupon in favor of plaintiff Long and the trustee should, out of the proceeds arising from the sale, pay off the deed of trust and the costs of executing the same and all taxes and other liens against the property, and after paying all such, the surplus should be divided by the trustee equally between plaintiff Rufus W. Johnson and Minnie Johnson, and that possession of the property should be delivered to the purchaser within ten days after the sale; that this instrument of writing was delivered to Norton on October 29th, 1913, as trustee for the Johnsons, parties to that written agreement; that by the deed and agreement executed and delivered as aforesaid, there was a change in the title and interest in the real estate and before the fire, within the meaning of the policy, and that the interest of the insured, Johnson, was and became other than the entire unconditional and sole ownership of the property and that the building insured was at the time of the fire on ground not owned by insured in fee simple. The answer also alleged that in the sworn statement of proof of loss Rufus Johnson had made false statements as to title and had made...