Pope v. Glens Falls Ins. Co.

• Decision Date: 28 February 1903
• Parties: POPE v. GLENS FALLS INS. CO.
• Court: Alabama Supreme Court

34 So. 29

136 Ala. 670

POPE v. GLENS FALLS INS. CO.

Supreme Court of Alabama

February 28, 1903

Appeal from Circuit Court, Madison County; Osceola Kyle, Judge.

Action by Lucy D. Pope against the Glens Falls Insurance Company. The lower court gave the general affirmative charge for defendant, and plaintiff appeals. Affirmed.

This was an action on a fire insurance policy in Code form. Pleas 6 and 7 set up, respectively, breaches of the conditions of the policy declaring same void "if the interest of the insured be other than unconditional and sole ownership," and "if the subject of insurance be a building on ground not owned by the insured in fee simple." Replications 2 and 4 to these pleas set up that the agent of defendant who issued the policy knew and was fully advised by plaintiff of the true character, nature, and condition of her possession title, and ownership of said property, and with such knowledge issued the policy. Demurrers to these replications were overruled. Replication 5 to pleas 6 and 7 set up that the policy was issued by one Joseph E. Cooper, who was the agent of defendant, and at the time of the issuance of the policy he knew or ought to have known full well the true condition, character, and nature of plaintiff's title and ownership of said property, and that plaintiff made no formal application for the issuance of said policy, but the same was issued by said agent on his own knowledge and information. Demurrers to this replication were sustained. Defendant set up by way of rejoinder to replications 2 and 4 that plaintiff's interest when the policy was issued was the statutory right to redeem from a foreclosure sale under a deed of trust, which right of redemption had expired, without being exercised, before the fire. A demurrer to this rejoinder on the ground that it simply set up a want of insurable interest, which issue had already been raised on the third amended plea and other pleadings, was overruled. Plaintiff then, by way of surrejoinder, set up that her right of redemption had been extended by the Southern Building &amp Loan Association, the cestui que trust in the deed of trust and the purchaser at the foreclosure sale, and that she did have an insurable interest in the property at the time of the fire and when the policy was issued. On this surrejoinder defendant took issue. The proof showed, without conflict that at the time the policy was issued there was on the property a deed of trust to Joseph Martin for the benefit of the Southern Building & Loan Association, which had been foreclosed, and the property bought in by the cestui que trust, to whom the trustee had made a deed. The statutory right of redemption had not expired when the policy was issued. It had expired when the property was burned. Plaintiff testified to agreements between her and the Southern Building & Loan Association extending the time for redemption. The plaintiff testified that she did not apply to Mr. Cooper, the agent, for insurance on the house; that she applied to him for insurance on her furniture; that he asked her if the house was hers, and she told him yes, but the Southern Building & Loan Association had a mortgage on it that Cooper told her that it made no difference, and that he could insure it, which he did, and she accepted it, without making any formal written application; that at the time she did not know herself that the mortgage had been fore closed. The agent, Cooper, denied that she told him there was a mortgage on the property, or that he had any information whatever on the subject.

S. S. Pleasants, for appellant.

Cooper & Foster and R. W. Walker, for appellee.

DOWDELL J.

This is an action on a fire insurance policy, and the complaint is in Code form. The subsequent pleadings consisted of pleas replications thereto, rejoinders, and surrejoinders, with the usual accompaniment of demurrers at the different stages of the pleadings. The assignments on the rulings of the court are...