Rosenstock v. Mississippi Home Ins. Co.

• Decision Date: 16 November 1903
• Citation: 82 Miss. 674,35 So. 309
• Court: Mississippi Supreme Court
• Parties: MORRIS ROSENSTOCK, EXR., v. MISSISSIPPI HOME INSURANCE COMPANY

35 So. 309

82 Miss. 674

MORRIS ROSENSTOCK, EXR., v. MISSISSIPPI HOME INSURANCE COMPANY

Supreme Court of Mississippi

November 16, 1903

[Copyrighted Material Omitted]

FROM the circuit court of Washington county. HON. A. McC. KIMBROUGH, Judge.

This was an action brought by the appellant, Morris Rosenstock executor of M. Rosenstock, deceased, against the appellee the Mississippi Home Insurance Company, on its policy of insurance against fire, dated September 3, 1903, in favor of the "estate of M. Rosenberg," containing a stipulation that the same should be void "if the insured is (were) not the sole and unconditional owner of the property." The property, a storehouse, was totally destroyed by fire on December 28, 1903, and this suit was thereafter instituted on the policy by the executor. The defendant insurance company pleaded in avoidance of the policy that (by reason of the contract hereinafter set out) neither the decedent M. Rosenberg nor his estate was the sole and unconditional owner of the property when the contract of insurance was entered into, upon which plea issue was joined. On December 26, 1900, the decedent had entered into the following contract of sale of the storehouse in question:

"For and in consideration of the sum of two hundred dollars cash in hand paid me by Ben Tee, and for the further consideration of thirty-two notes, $ 25 each, dated Jan. 1st, 1901, and due and payable the first of each month until paid, notes bearing interest at the rate of 6 per cent per annum, and making the total consideration of $ 1,000 (one thousand dollars), I, M Rosenberg, hereby agree to sell unto said Ben Tee the following property, being in the town of Glen Allan in Washington county, Mississippi, to wit [here giving a description of the lot], with all and singular the appurtenances thereto belonging. It is hereby agreed that when all notes are paid by said Ben Tee said Rosenberg is to give said Tee a deed and rifle to said storehouse. It is hereby agreed that said sale is subject to the lease of said storehouse now owned and occupied by J. Harber & Co. Given under my hand this 26th day of December, 1900. (Signed) M. Rosenberg."

Ben Tee, the vendee of the decedent, paid $ 200 in cash to the decedent on this contract and went into possession of the property in June, 1901, and has remained in possession ever since. Afterwards, before the fire, he paid $ 425 more of the purchase money. The property was originally insured by the decedent and renewals sent to him from year to year during his lifetime. After his death the policy in suit was issued and mailed to his executor. The insurance company was entirely without notice of the existence of the contract of sale and of the possession of the property by Tee under the same until after the fire. No demand was then made on the decedent by the insurance company for any information as to the premises, the title thereto or the occupant thereof.

The court below gave a peremptory instruction for the defendant, and from the judgment in its favor the plaintiff appealed to the supreme court.

Affirmed.

William, Griffin, for appellant.

The policy was payable to the "estate of M. Rosenberg" irrespective of title, interest, or occupancy. All persons interested in the estate undoubtedly have insurable interest in the property of the estate until final distribution. The executor is merely the medium to collect the policy for the benefit of the estate. It is not pretended that the executor made any representations whatsoever to appellee; on the contrary, it is expressly agreed "that after Rosenberg's death the policy in suit was issued as therein shown, and mailed to Morris Rosenberg, and this is all that occurred in connection with the issuance of the policy;" also that no demand was ever made on the executor by appellee for any information as to the title or occupancy of the premises.

So far as the evidence discloses, the executor may not have known of the existence of the policy until it was received by him, through the mail, and he was called upon to pay the premium, which he did.

The facts that Ben Tee was in possession of the premises at the time of the death of Rosenberg and the expiration of the old policies, and that the contract sued upon was executed after the death of Rosenberg, and in any event looked to the future and not to the past, and was a new contract in every particular, were disregarded.

Under the agreed facts in this cause, the appellee, when it executed the policy in suit and received a premium therefor, expressly waived all conditions as to the "title to the property" and the "sole and unconditional ownership thereof" which may have existed anterior to its execution, and this seems to be well settled by the text writers and decisions.

"It may be stated as a general rule that if there is no written application, and the company issues a policy without one, or without any written request, or without any representation, oral or written, the policy may be assumed to have been written upon the knowledge of the company or its agent, and in such case the company cannot, after a loss, set up that the interest or the title of the assured is other than that evidenced by the policy." 1 Joyce on Insurance, sec. 496. See also 1 Wood on Insurance, p. 409; Morrison's Admr. v. Insurance Co., 59 Am. Dec., 299, and notes; Armenia Ins. Co. v. Paul, 36 Am. Rep., 676.

"A condition in a policy of insurance that the policy shall be void unless consent in writing is indorsed thereon by the company, if the assured is not the sole and unconditional owner of the property, relates only to changes arising after the execution and acceptance of the policy, does not apply to an existing state or condition of the property at the time when the policy was issued." Hall v. Niagara Fire Ins. Co., 32 Am. St. Rep., 497; Peet v. Dakota F. & M. Ins. Co., 47 N.W. , 532.

"A fire insurance policy which provides that it shall be void if the interest of the assured be other than unconditional and sole ownership, issued on a dwelling to one who holds the land under contract only, is not void where he made no written application and no representations as to the ownership." Knop v. National Fire Ins. Co., 59 N.W. 653; 16 Am. & Eng. Enc. Law, p. 936, Par. C. and note 1, p. 937.

The case of the Georgia Home Ins. Co. v. Holmes, 75 Miss. 390, ought to be decisive of the question.

But under the facts of this case, even though the loss had occurred in the lifetime of Rosenberg, or under any of the policies in force at his death, the contract of sale would not have worked a forfeiture, either as an alienation of the property or its sole and unconditional ownership, under those decisions which are said to be the sounder doctrine, in the light of modern jurisprudence, and which are certainly more in consonance with justice, when the nature of the contract is taken into consideration.

"An executory contract for the sale of the insured property is not a 'sale,' 'transfer,' 'alienation,' or 'change of title' so as to avoid the policy so long as there has been no conveyance or delivery under the contract. While the purchase money is unpaid, and the property is in the possession of the insured, or the title is in him, such a contract is similar to any other incomplete transfer in its effect upon the conditions of the policy."

"If the vendee takes possession under the contract, and makes payments, acquiring an equitable title, it has been held that there is a change of title within the meaning of the condition; but this is contrary to the general rule." 13 Am. & Eng. Enc. Law, pp. 247, 248, and cases cited, especially Smith v. Phoenix Ins. Co., 25 Am. St. Rep., 191.

The execution of the policy in this suit was entirely in the hands of the appellee. It selected the "estate of M. Rosenberg" as the beneficiary, and necessarily agreed to pay all persons interested in said estate the full amount of the policy, in event of a total loss, regardless of the conditions contained in the policy, now relied upon to defeat it. It accepted the policy subject to the law governing estates, and contracted to indemnify said estate for the consideration named in the policy in the event of loss. It expressly waived the conditions relied upon in so making the contract. It expressly recognized the various interests arising under the administration of an estate, and agreed to protect these interests.

Thomas & Rose, for appellee. ^[*]

On the 3d day of September, 1902, appellee issued its policy of insurance to the "estate of M. Rosenberg," insuring a storehouse for a term of one year. On December 26, 1900, M Rosenberg executed a contract of sale for the storehouse, and the lot on which it stood, to Ben Tee, for $ 1,000, a copy of the contract being set out in the agreed statement of facts. The purchaser paid $ 200 in cash, as provided by the contract of sale, went into possession under the contract in June, 1901, and continued in possession under the contract, of sale until the destruction of the store, and is still in possession under the contract. The contract of insurance provides, among other things, that, if the insured is not the sole and unconditional owner, the policy shall be void. Under the agreed statement of facts, the "issues are raised by the pleadings;" that no notice of any kind was given appellee of the execution of the contract; that it had no notice of any kind of the existence of the contract, or the possession of the property by Ben Tee under the contract, until after the fire that destroyed the property, and soon after the fire, and before suit brought, appellee notified plaintiff that it regarded the policy as void, denied its liability thereunder, and tendered and offered to pay back to plaintiff...