Mahan v. The Home Insurance Company of New York

• Decision Date: 08 November 1920
• Citation: 226 S.W. 593,205 Mo.App. 592
• Parties: CLARA MAHAN et al., Respondents, v. THE HOME INSURANCE COMPANY OF NEW YORK, Appellant
• Court: Kansas Court of Appeals

226 S.W. 593

205 Mo.App. 592

CLARA MAHAN et al., Respondents, v. THE HOME INSURANCE COMPANY OF NEW YORK, Appellant

Court of Appeals of Missouri, Kansas City

November 8, 1920

Appeal from the Circuit Court of Johnson County.--Hon. Ewing Cockrell, Judge.

REVERSED.

Judgment reversed.

Nick M Bradley for respondents.

Fyke Snider & Hume for appellant.

OPINION

ELLISON, P. J.

Plaintiff's action is based on a policy of fire insurance. The judgment was for her in the trial court.

The policy covered a dwelling house in the sum of $ 500 and household furniture in the dwelling in the same sum. It was issued to J. H. Mahan and transferred by him, with the Insurance Company's consent, to his wife the present plaintiff. At the time of the assignment to plaintiff she was the owner of the property insured; but on the 2nd of October, 1918, she sold the land and dwelling to Ernest L. Jones, by a written contract. Defendant's agent was advised of this sale and consented to it.

We judge from the record that a deed was to be executed at a future time. But the record does not show when or on what conditions; nor does it show whether possession was given to Jones. It appears that the property was totally destroyed by fire in December following her sale to Jones.

Defendant claims that as plaintiff sold the property, all right to insurance passed from her and a policy with loss payable to her became necessarily inoperative, for the reason that if she did not own it she could not suffer a loss and therefore it was of no consequence that defendant's agent knew of the sale and made no objection.

It is the rule in this State that after "a contract for the conveyance of real estate has been entered into, by the execution of a bond for title and notes for the purchase money, the property is at the risk of the purchaser. If it burns up it is his loss, if it increases in value it is his gain." [Snyder v. Murdock, 51 Mo. 175.] This is the view later announced by the Supreme Court as shown in Ranck v. Wickwire, 255 Mo. 42, 61, 164 S.W. 460.

How does this rule of law affect the present question? We agree that if the property became that of Jones' from the date of the sale by the written contract, its destruction was the loss of Jones and not this plaintiff. If one sells his property so that the title passes to his vendee, though it be a title in equity without deed, its destruction, total or partial, is the loss of the vendee.

But if the vendor has yet an interest in the property after sale as, for instance, by vendor's...