Roberts v. American Alliance Ins. Co.
| Decision Date | 22 September 1937 |
| Docket Number | 22. |
| Citation | 192 S.E. 873 |
| Parties | 212 N.C. 1, 113 A.L.R. 310 v. AMERICAN ALLIANCE INS. CO. ROBERTS |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Currituck County; C. L. Williams, Judge.
Action by Rufus D. Roberts against the American Alliance Insurance Company. From a judgment in favor of the plaintiff, the defendant appeals.
Affirmed.
Civil action to recover on a policy of fire insurance.
The policy in suit was issued by defendant to plaintiff, August 8, 1936, on dwelling, tenant house, barn, and contents situate on plaintiff's farm in Currituck county. The insured property was destroyed by fire August 24, 1936.
Defendant denies liability under a clause in the policy which provides "This entire policy shall be void, unless otherwise provided by agreement in writing added thereto, (a) if the interest of the insured be other than unconditional and sole ownership."
The facts relative to plaintiff's ownership of the property are that on March 22, 1924, plaintiff and his brother, Oscar F. Roberts, purchased 37 acres of land in Currituck county and took title to the same as tenants in common. On July 8 1932, pursuant to parol partition, the property was surveyed plat made thereof, and divided, the plaintiff being allotted the southern part, upon which he had erected, at his own expense, the houses and barn in question, and his brother being allotted the northern part. Thereafter, each occupied and claimed his respective share in severalty.
From directed verdict and judgment for plaintiff, the defendant appeals, assigning errors.
Where brothers purchased land, taking title as tenants in common, and thereafter, pursuant to parol partition, property was surveyed and divided, and each occupied and claimed his respective share in severalty, brothers had exclusive use and enjoyment of property under claim of right, and partition was good as against each other, unless the statute of frauds could be invoked as defense.
J. M. Broughton, of Raleigh, and Chester R. Morris, of Currituck, for appellant.
M. B. Simpson and R. Clarence Dozier, both of Elizabeth City, for appellee.
The policy in suit is in the standard form as prescribed by C.S. § 6437. The requirement of "unconditional and sole ownership" is statutory, Black v. Ins. Co., 148 N.C. 169, 61 S.E. 672, 21 L.R.A. (N.S.) 578, as well as contractual, Weddington v. Ins. Co., 141 N.C. 234, 54 S.E. 271, 8 Ann.Cas. 497. Its validity is not mooted on the present record. Johnson v. Ins. Co., 201 N.C. 362, 160 S.E. 454; Hardin v. Ins. Co., 189 N.C. 423, 127 S.E. 353; Roper v. Ins. Co., 161 N.C. 151, 76 S.E. 869; Federal Land Bank of Columbia v. Ins. Co., 187 N.C. 97, 121 S.E. 37; McIntosh v. Ins. Co., 152 N.C. 50, 67 S.E. 45, 136 Am.St.Rep. 818; Hayes v. Ins. Co., 132 N.C. 702, 44 S.E. 404.
Is plaintiff's interest or ownership in the property sole and unconditional within the meaning of the policy? We think the trial court correctly answered the question in the affirmative. Kenton Ins. Co. v. Wigginton, 89 Ky. 330, 12 S.W. 668, 7 L.R.A. 81.
Plaintiff is in the exclusive use and enjoyment of the property under claim of right. Modlin v. Ins. Co., 151 N.C. 35, 65 S.E. 605. His title to the part allotted to him in partition is good as against his brother (Collier v. Paper Corp., 172 N.C. 74, 89 S.E. 1006), unless the statute of frauds be invoked or relied upon as a defense, and a stranger to the transaction, such as the defendant, can take no advantage of the statute (Cowell v. Ins. Co., 126 N.C. 684, 36 S.E. 184; 26 C.J. 173). Hence, in the present action, as against the defendant, it is proper to say he is the sole and unconditional owner thereof. Such was the plaintiff's understanding when he took out the insurance, and he alone has suffered loss by the destruction of the property. Valenti v. Imperial Assur. Co., 107 Vt. 65, 176 A. 413. It is not thought that he must show title absolutely good against the world. Crider v. Simmons, 192 Ark. 1075, 96 S.W.2d 471. It is enough if his interest be sole and unconditional in the generally accepted sense. Bardwell v. Com. Union Assur. Co., 105 Vt. 106, 163 A. 633. The plaintiff had no misgivings as to his complete ownership in the property when applying for the insurance, and his failure to express a doubt when none existed in his own mind ought not to be held against him. The defendant assumed the risk which it intended. It has not been misled, and its rights have in no way been affected by the matter now presented. Atlas Fire Ins. Co. v. Malone, 99 Ark. 428, 138 S.W. 962, Ann.Cas.1913B, 210.
It is held by courts of recognized authority, and our own decisions point in the same direction, that, where one is in the exclusive use and enjoyment of the entire estate, under claim of right, without assertion of adverse title by another, his interest is properly described as sole and unconditional ownership, within the meaning of a policy of insurance containing such provision, although his title may be defective in some particular. Modlin v. Ins. Co., supra; Jordan v. Ins. Co., 151 N.C. 341, 66 S.E. 206; Lancaster v. Ins. Co., 153 N.C. 285, 69 S.E. 214, 138 Am.St.Rep. 665; Western Assur. Co. v. Hughes, 179 Okl. 254, 66 P.2d 1056; 14 R.C.L. 1052, et seq. See annotation, L.R.A.1918E, 375.
In Hankins v. Williamsburg City Fire Ins. Co., 96 Kan. 706, 153 P. 491, L.R.A.1918E, 373, Ann.Cas.1918C, 135, it was held (as stated in syllabus which accurately digests opinion): "A fire insurance policy upon a building, containing a stipulation that the policy 'shall be void * * * if the interest of the insured be other than unconditional and sole ownership,' is not invalidated because of an outstanding naked legal title in another where the insured has the equitable title, the entire beneficial ownership of the property, and is in undisputed possession of the same."
Again in American Basket Co. v. Farmville Ins. Co., 1 Fed.Cas.No. 290, p. 618, 619, it appeared that the beneficial title was in the insured, a foreign corporation, but that the legal title was carried in the name of one of its officers because of a statute forbidding the ownership of realty by a foreign corporation. Held the requirement of "entire, unqualified, and sole" ownership for insured's "own use and benefit" satisfied,...
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