Roney v. Commercial Union Fire Ins. Co.

• Decision Date: 06 October 1932
• Docket Number: 4 Div. 637.
• Citation: 143 So. 571,225 Ala. 367
• Parties: RONEY ET AL. v. COMMERCIAL UNION FIRE INS. CO.
• Court: Alabama Supreme Court

143 So. 571

225 Ala. 367

RONEY ET AL. v. COMMERCIAL UNION FIRE INS. CO.

4 Div. 637.

Supreme Court of Alabama

October 6, 1932

Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.

Bill of interpleader by the Federal Land Bank of New Orleans against Mattie Roney, J. C. Roney, the Commercial Union Fire Insurance Company of New York, and another. From a decree for respondent, insurance company, respondents Mattie Roney and J. C. Roney appeal.

Affirmed.

E. C Boswell, of Geneva, for appellants.

Coleman Spain, Stewart & Davies, of Birmingham, for appellee.

GARDNER J.

The cause was tried upon an agreed statement of facts, the salient features of which appear in the report of the case.

The policy of insurance issued to J. C. Roney contained a warranty to the effect that it should be void if the interest of the insured be other than unconditional or sole ownership or if the subject of the insurance be a building on ground not owned by the insured in fee simple.

It is not controverted that at the time of the issuance of the policy and at the time of the fire the fee-simple title to the property was in Mattie Roney, the wife of J. C. Roney, and under this proof, without more, the insurer could have established a complete defense to a suit upon the policy. Gunn v. Palatine Ins. Co., 217 Ala. 89, 114 So. 690; Girard Fire & Marine Ins. Co. v. Gunn, 221 Ala. 654, 130 So. 180; New Brunswick Fire Ins. Co. v. Nichols, 210 Ala. 63, 97 So. 82. And in the proof of loss, duly sworn to by J. C. Roney, the insured (and upon which the insurance company acted in forwarding the check), was the express statement that at the time of the issuance of the policy, and at the time the fire occurred, the assured's title to all the buildings described as insured thereunder, and the ground upon which said buildings were situated, was that of sole and unconditional owner in fee simple. The check for the insurance was made payable to the mortgagee and the insured jointly, and the insistence on the part of insured for the payment of the full amount to him evidently led to the controversy which disclosed the breach of the warranty as to ownership, and to the interpleader proceedings on the part of the mortgagee.

Counsel for insured seeks to avoid the effect of the above-noted breach of warranty upon the doctrine of waiver or estoppel ( American Equitable Assur. Co. v. Powderly C. & L. Co. (Ala. Sup.) 142 So. 37, and authorities supra), based upon the assumption that the insurance company had knowledge or notice of the state of the title and issued the policy in the light of such knowledge. But the proof offered does not suffice to sustain his contention. It is only to the effect that the company's agent had lived in that community a number of years and as a matter of common knowledge knew that some time in the past (left indefinite in the proof) the land on which the building was erected had been inherited by Mattie Roney from her father, though nothing was said about this at...