Patten v. Springfield Fire & Marine Ins. Co.

• Decision Date: 21 December 1928
• Docket Number: No. 4494.,4494.
• Citation: 11 S.W.2d 1101
• Court: Missouri Court of Appeals
• Parties: PATTEN et al. v. SPRINGFIELD FIRE & MARINE INS. CO.

11 S.W.2d 1101

PATTEN et al. v. SPRINGFIELD FIRE & MARINE INS. CO.

No. 4494.

Springfield Court of Appeals. Missouri.

December 21, 1928.

Rehearing Denied January 3, 1929.

Appeal from Circuit Court, Jasper County; S. W. Bates, Judge.

Action by W. E. Patten and another against the Springfield Fire & Marine Insurance Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

E. J. McNatt, of Aurora, for appellant.

A. G. Young, of Webb City, for respondents.

BRADLEY, J.

This is an action on a fire insurance policy. The cause was tried before the court without a jury. Judgment went for plaintiffs, and defendant appealed.

The policy sued on was issued June 18, 1925, for three years, and insured a farm dwelling in McDonald county for $850. Plaintiff Poplin is the insured and plaintiff Patten is mortgagee. The insured dwelling was destroyed by fire on May 2, 1927.

It is alleged that at the time of the fire plaintiff Poplin was the sole and unconditional owner of the insured property, except as to the interest of the mortgagee. Defendant in its answer alleged breaches of the policy contract, because of certain alleged facts, viz. (1) False swearing by plaintiff Poplin in the proofs of loss; (2) a change in the title and interest of the insured in the property otherwise than by succession by death of the insured; and (3) the commencement of foreclosure proceeding. The reply is a general denial and a plea of waiver as to the defense based on the commencement of foreclosure proceedings.

Error is assigned on the refusal of an instruction in the nature of a demurrer to the evidence at the close of the case; on the refusal of other declarations or instructions; and on the exclusion of evidence offered by defendant.

Plaintiff Patten sold to plaintiff Poplin the land upon which the insured dwelling was located April 6, 1925, and took back at the same time a deed of trust thereon to secure a note for $3,000 given by Poplin as a part of the purchase price. The note was due in one year with interest payable quarterly. Plaintiff Patten resided in Webb City. Poplin at the time resided in Joplin, as we infer from the record. A tenant occupied the insured dwelling. The loss payable clause attached to and forming a part of the policy is as follows: "Loss, if any, to be adjusted only with the insured named herein and payable to the insured and W. E. Patten, Webb City, Mo., or assigns as their respective interest may appear, subject, nevertheless, to all the terms and conditions of the policy."

Under this loss payable clause it is conceded that the mortgagee's right to recover is dependent upon the right of Poplin, the mortgagor, to recover. Ford v. Iowa State Ins. Co., 317 Mo. 1144, 298 S. W. 741, 56 A. L. R. 842. Hence we may address ourselves to the question of Poplin's right to recover. The denial of the right of Poplin, and of both plaintiffs in effect, to recover, is based upon the three defenses pleaded in the answer.

The sworn statement, alleged to be false, in the proofs of loss is that plaintiff Poplin was at the time of the fire "the sole, absolute and unconditional owner" of the insured property, except as to plaintiff Patten's deed of trust. It is provided in the policy that it shall be null and void "if any false statements are made in said application or otherwise that shall deceive the company to its injury." It is contended by defendant that plaintiff Poplin, after the policy was issued and prior to the loss, conveyed by warranty deed the insured property to one R. E. Deer, and that the statement in the proofs of loss that he (Poplin) was the sole owner, etc., except as to the mortgagee, was false.

Defendant introduced the deposition of Poplin, and concerning the alleged conveyance to Deer he testified as follows:

"Q. How long after you got this warranty deed (from plaintiff Patten) was it before you deeded it away to somebody else? A. I don't remember that.

"Q. Was it in the same year, 1925? A. No. I think it was in 1926 some time. I think it was before January, 1927.

"Q. Was that a warranty deed that you executed when you deeded the property away? A. Yes.

"Q. Did you deliver the deed to the person named in the deed? A. I deeded it in blank.

"Q. Who did you deliver the deed to? A. I don't know. I made the trade with some fellow over near Buffalo. I traded him this equity subject to $3000 — I forget — I make so many deals and I made a deed in blank and delivered to this man. I don't know where he is. I handed him this deed in Joplin at my office at 614 Main Street, Joplin, Missouri. I believe this man lived in the town of Buffalo. I dealt for a farm out north of Buffalo. I think he was in the hotel business the best I remember, I never saw him before.

"Q. Just tell us what you remember now, what the terms of the deal were. A. Well, I don't know. I can't remember, you know. It seems like I dealt for a farm out north of Buffalo.

"Q. You gave him a warranty deed to this farm in Dallas County? A. I think that's it.

"Q. Did you authorize him to fill in that warranty deed of yours with the name of any grantee he saw fit? A. Yes.

"Q. Just give me your best recollection as to what month in 1926 that was. A. I would not have any idea; I can't remember; I don't know a thing about it.

"Q. On the deed of trust to Patten on the farm in McDonald county you remember whether you personally ever paid any interest on that deed of trust? A. Yes, I did, the best I remember. I think that deed of trust was drawn to the best I remember with the interest payable quarterly. I think I paid the first and second quarters. I didn't pay the third quarter.

"Q. The fact that you remember paying the first and second and not the third, would that indicate that it was about six months after you got the property that you deeded it away? A. Possibly it would, yes. It would have been — the third one might have been due and past due that I did not pay and I don't know that I paid the second one but I remember paying one and I am pretty sure I paid two. I don't know whether the interest was paid more than twice. I don't know whether anybody paid the third and fourth installments. This man in Buffalo never deeded the property back to me.

"Q. As far as you are concerned he still has that deed of yours? A. Yes.

"Q. And whatever title he got he still has as far as you know? A. Yes.

"Q. Do I understand that you own the complete title to this farm after you had taken it over from Patten, that is, Patten deeded you a warranty deed to the property? A. Yes.

"Q. The whole of it? A. Yes.

"Q. And then this deed to the man in Buffalo. Do I understand that you deeded to him your entire interest in the property subject to Patten's deed of trust? A. Yes. He might not have ever recorded that deed. I don't know whether he did or didn't. It may be the title is still in me down there."

After testifying concerning other matters, Poplin further testified relative to the conveyance to the "man in Buffalo" as follows:

"Q. And this warranty deed that you gave to this man in Buffalo — you never discussed that with Armstrong (local agent) or anybody connected with the company? A. No. I may have just given him a contract for deed. I don't remember how that deal was. I think there is some part of that he never did fulfill that we made in the transaction. I may have just given him a contract for deed. I don't remember whether it was a warranty deed I took for it. In fact, I never have seen him since.

"Q. And after the first couple of interest payments were made by you on this land and you quit making interest payments, doesn't that indicate that you considered you had no further interest in the land, and that you had deeded it to the man in Buffalo? A. I had a further interest in this way, that in case the other man did not pay it, did not keep the interest up and fulfill his contract with me, that I could redeem it at any time. As a matter of fact, if that interest was payable quarterly it would not stop me from paying it annually if I wanted to because I have got that much credit with Patten, without any note.

"Q. Do you consider that you have any interest in this land now after you have given a deed to the man in Buffalo? A. Yes, I do.

"Q. And what interest is it that you think you have in the land? A. I think all of it until such time as this Buffalo man fulfills his contract with me but there is something about that, I just don't recall. Anyway, there is a piece of land or an equity of what he did give me.

"Q. You have been telling me right up until now that you gave the man a warranty deed to it. A. It might possibly have been a warranty deed but he was not to record that until such time as he fulfilled his contract with me. It might be recorded, I don't know, but he never did fill his contract.

"Q. Is it your opinion that the conveyance you made to the man in Buffalo was conditional in some way? A. Yes.

"Q. And he had not complied with those conditions? A. No.

"Q. What were the conditions? A. Well, he had a blank deed or two along with him; there are a lot of blank deed dealers, you know, so he was to give me something else, that he did not have the papers along with him for, and I either gave him a warranty deed or gave him a contract for deed, instead of putting that up as escrow and traded with him and he never did send whatever it was. I make so many deals I cannot remember, a farm equity or a house equity or something else; he was to give me something. I don't know whether he ever paid Patten any interest after that or not.

"Q. Mr. Poplin, you are a real estate dealer and I do not understand why you would have given that man a warranty deed which he could record to your property unless he had complied with all the conditions necessary in order to enable him to get your property? A. Supposing you had a good enough deal there, even if he did not do the other. I figured I had him cheated anyway whether he ever...