Va. Fire & Marine Ins. Co v. J. I. Case Threshing Mach. Co

• Decision Date: 21 November 1907
• Citation: 59 S.E. 369,107 Va. 588
• Court: Virginia Supreme Court
• Parties: VIRGINIA FIRE & MARINE INS. CO. v. J. I. CASE THRESHING MACH. CO.

59 S.E. 369

107 Va. 588

VIRGINIA FIRE & MARINE INS. CO.

v.J. I. CASE THRESHING MACH. CO.

Supreme Court of Appeals of Virginia.

Nov. 21, 1907.

1. Insurance—Interest of Insured—Conditions—Breach.

Insured, by accepting a policy on incumbered property containing a condition that it should be void in case the property insured should be or become incumbered prior or subsequent to the date of the policy, was charged with notice of and bound by such condition.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 636-651.]

2. Same—Waiver.

Where a policy insuring certain incumbered personal property was issued without written application, knowledge, or notice on the part of the insurer or its agent that the property was incumbered, insurer did not waive a condition that the policy should be void in case the property was or should become incumbered.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 28, Insurance, § 1028.]

3. Same—Return of Premiums.

Where a policy insuring incumbered property was void from its inception, because of the incumbrance, the insurer was not required to return or offer to return premiums voluntarily paid before notice of the invalidity of the policy as a condition precedent to its right to avail itself of such defense in an action on the policy.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 1045, 1530.]

Error to Circuit Court, Clarke County.

Action by the J. I. Case Threshing Machine Company against the Virginia Fire & Marine Insurance Company. From a judgment for plaintiff, defendant brings error. Reversed.

Marshall McCormick, for plaintiff in error.

Whiting & Smith, for defendant in error.

BUCHANAN, J. The policy of insurance upon which this proceeding is based contains

the following provision: "This entire policy * * * shall be void * * * if the property hereby insured, or any part or item thereof, be or become incumbered by any lien by mortgage, deed of trust, judgment, or otherwise, either prior or subsequent to the date hereof."

There was a deed of trust upon the property insured at the date the policy was issued, and the question involved here is whether, upon the facts agreed, the whole matter of law and fact being submitted to the court, it erred in holding that the insurance company was liable.

The facts agreed are as follows:

"First. That C. K. Sowers, the assignor of the plaintiff, was approached by an agent of the defendant insurance company to take out a policy of insurance upon his machine, which said Sowers agreed to do, without making any verbal representation to said agent as to his title or ownership in said machine and fixtures; that no written application was presented to the insured, C. K. Sowers. None was signed by him. No questions were asked by the agents of the insurance company as to title or incumbrances.

"Second. That C. K. Sowers paid the premium for said insurance, and the policy sued upon was delivered to him.

"Third. That the insured, C. K. Sowers, complied with all conditions of said policy, and that the fire...