Rhea v. Planters' Mut. Ins. Co.

• Citation: 90 S.W. 850
• Parties: RHEA v. PLANTERS' MUT. INS. CO.
• Decision Date: 04 November 1905
• Court: Supreme Court of Arkansas

90 S.W. 850

RHEA v. PLANTERS' MUT. INS. CO.

Supreme Court of Arkansas.

November 4, 1905.

Appeal from Circuit Court, Washington County; John N. Tillman, Judge.

Action by R. J. Rhea against the Planters' Mutual Insurance Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Action by R. J. Rhea against the Planters' Mutual Insurance Company to recover upon a policy for the sum of $2,500, insuring a dwelling house and personal property contained therein totally destroyed by fire on September 26, 1902. Verdict and judgment for the defendant, and the plaintiff appealed.

R. J. Wilson, for appellant. J. W. & M. House, for appellee.

McCULLOCH, J. (after stating the facts).

The policy sued on contained a clause providing that, "if the property insured, now is, or shall become incumbered by mortgage or otherwise, * * * or if the interest of the member in said property, or any part thereof, now is, or shall become any other or less than a perfect legal and equitable title and ownership, free from all liens whatever, except as stated in writing hereon * * * then, and in every such case, this contract shall be absolutely null and void." The defendant, among other defenses, pleaded a violation of the above condition of the policy by appellant, and to sustain the plea introduced testimony showing that at the time the policy was issued, and at the time of the fire, the dwelling house insured was incumbered by a mortgage executed by appellant and his wife to one Margaret C. Powell to secure a note of $500. The mortgage was not filed for record until after the fire. Appellant admitted the execution of the mortgage and note but testified that the property was his homestead, and that his wife signed, but did not appear before the officer, nor acknowledge the execution of the mortgage, and that the officer had falsely certified the acknowledgment at his (appellant's) request. The mortgage bears date of January 21, 1899, and the policy of insurance was issued September 27, 1899 to cover a period of three years from that date. J. D. Powell, uncle of appellant and husband of Margaret C. Powell, testified that he lent the sum of $500 to appellant and took the note therefor, payable to his wife, and the mortgage securing same; that his health was poor and he caused the note and mortgage to be executed in her name as a provision for her in the event of his death; and that he delivered the same to her several months after the date of the mortgage.

Appellant contends that the mortgage was void and did not constitute an incumbrance within the meaning of the policy, because (1) it was not recorded, and (2) was not acknowledged by his wife; the dwelling house being his...