North British & Mercantile Ins. Co. v. Freeman
| Decision Date | 22 January 1896 |
| Citation | 33 S.W. 1091 |
| Parties | NORTH BRITISH & MERCANTILE INS. CO. v. FREEMAN.<SMALL><SUP>1</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from district court, Ellis county; J. E. Dillard, Judge.
Action by P. Freeman against the North British & Mercantile Insurance Company on a policy of insurance. Plaintiff had judgment, and defendant appeals. Affirmed.
Morgan & Thompson, for appellant. M. B. Templeton, for appellee.
The facts relative to the matters assigned as error may be stated as follows: Appellant issued to Freeman a policy on personal property, describing the subject insured and amount of insurance as follows: "$1,650 on household and kitchen furniture, useful and ornamental, beds, bedding, * * * musical instruments;" etc. "$100 on watches and jewelry,—all contained and while contained in a certain dwelling in Ennis." At the date of the policy, Freeman had a piano in said dwelling, upon which there was a chattel mortgage, and upon which suit was afterwards brought to foreclose the lien, which suit resulted in Freeman surrendering the piano to the lien-holder. Afterwards he bought another piano, giving a lien thereon in the purchase and this plano, thus incumbered, was among the property destroyed by the fire which consumed the insured property. The policy contained the following provision: "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void [among other things] * * * if the subject of insurance be personal property and be or become incumbered by a chattel mortgage, or if, with the knowledge of the insured, foreclosure proceedings be commenced or notice given of sale of any property covered by this policy by virtue of any mortgage or trust deed." There is no evidence of any waiver on the part of the company, nor is there any evidence that the foreclosure proceeding above mentioned was instituted with the knowledge of the insured. The judgment was in favor of the plaintiff.
Conclusions of Law.
The subject of insurance in this case was the various articles of furniture, described collectively, the piano being one article of many covered by the policy. In order for a mortgage that existed at the time, or was afterwards given, to avoid the policy, under the clause above mentioned, it must have been upon the subject insured; that is, the entire property. The mortgages having reference to a part of the property, they did not defeat the policy. Insurance Co. v. Lorenz (Ind. App.) 29 N. E. 604; ...
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