Mcintosh v. North State Fireins. Co

• Decision Date: 02 March 1910
• Citation: 152 N.C. 50,67 S.E. 45
• Parties: McINTOSH et al. v. NORTH STATE FIREINS. CO.
• Court: North Carolina Supreme Court

67 S.E. 45

152 N.C. 50

McINTOSH et al.

v.NORTH STATE FIREINS. CO.

Supreme Court of North Carolina.

March 2, 1910.

1. Insurance (§ 282^*) —Fire Insurance — Ownership op Property — Fee-Simple Ownership.

A fire policy provided that it should be void if insured's interest was other than unconditional and sole ownership or the insured building was on ground not owned by insured in fee simple. The land on which the insured property was descended to the two daughters of insured's wife by a former marriage, she having a dower interest therein, and plaintiff after his marriage repaired the house insured on the land at his own expense. Held, that plaintiff had no legal or equitable estate in the land, so that the policy was void.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 601-635; Dec. Dig. § 282.*]

2. Reformation of Instruments (§ 19*)—Insurance Policy.

A bill in equity will lie, after the loss has occurred, to reform a written insurance policy, on the ground that, because of mutual mistake, it does not contain the true contract of the parties, as by showing that it was made for the benefit of others than the beneficiary named therein.

[Ed. Note.—For other cases, see Reformation of Instruments, Cent. Dig. §§ 74-78; Dec. Dig. $ 19.*]

Appeal from Superior Court, Craven County; Guion, Judge.

Action by A. H. Mcintosh and others against the North State Fire Insurance Company. From a judgment dismissing the action, plaintiffs appeal. Affirmed as modified.

W. D. McIver and R. A. Nunn, for appellants.

Simmons, Ward & Allen, for appellee.

BROWN, J. This action appears from the complaint to be brought by A. H. Mcintosh, Sadie and Pearlie Price, infants, by their next friend, A. H. Mcintosh, and Sallie Mcintosh, wife of A. H. Mcintosh, to recover for a loss by fire upon a standard policy of insurance, in which A. H. Mcintosh is the sole beneficiary.

From the complaint it appears that the property belonged to C. R. Price, and at his death descended to his two daughters, the infants herein named, and that his widow has a dower interest in a portion of it. Plain tiff A. H. Mcintosh married the widow, and afterwards at his own expense repaired, enlarged, and constructed a house, on his wife's part of the land, which is the house destroyed by fire and covered by the policy of insurance. The policy is referred to and made a part of the complaint. It is standard in form, and contains the following clause: "This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material facts or circumstance covering this insurance, or the subject thereof; or if the interest of the insured in the property be not truly stated herein, * * * or if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple."

1. It is patent that upon the allegations of this complaint A. H. Mcintosh cannot recover. He is not an unconditional or sole owner. In fact he has no legal or equitable estate in the land. Jordan v. Insurance Co., 151 N. C. 341, 66 S. E. 206; Weddington v. Insurance Co., 141 N. C. 234, 239, 54 S. E. 271; Hayes v. Insurance Co., 132 N. C. 702, 44 S. E. 404; Coggins v. Insurance Co., 144 N. C. 7, 56 S. E. 506, 8 LE.A. (N. S.) 839, 119 Am. St. Rep. 924; ...