Waller v. N. Assurance Co.

• Decision Date: 10 June 1884
• Citation: 64 Iowa 101,19 N.W. 865
• Parties: WALLER v. NORTHERN ASSURANCE CO. WALLER v. IMPERIAL FIRE INS. CO.
• Court: Iowa Supreme Court

64 Iowa 101

19 N.W. 865

WALLER

v.NORTHERN ASSURANCE CO.

WALLER

v.IMPERIAL FIRE INS. CO.

Supreme Court of Iowa.

Filed June 10, 1884.

Appeals from Dubuque circuit court.

These are actions at law to recover for money paid as premiums upon certain policies of insurance successively issued to plaintiff, the last one being held void, in an action thereon to recover for a loss, on the ground that the assured held but a mortgage interest in the property insured, while the policy was issued to him as the absolute owner. The cause was tried to the court without a jury, and upon facts found judgment was rendered for the premium paid upon the last policy. Plaintiff appeals. The same state of facts being involved in each case, they were tried together in the court below, and were submitted in the same manner in this court.Henderson, Hurd & Daniels, for appellant.

Fouke & Lyon, for appellees.

BECK, J.

1. The district court made the following findings of facts: “(1) Plaintiff was the holder of the legal and apparent title to the property in question, but in fact held the same only as security for a debt due him from Gen. C. H. Booth, who, subject to said debt, was the equitable owner of the property. (2) Such being the state of the title, plaintiff's agent, Duncan, applied to defendant's agent, Kiene, for $5,000 insurance on the property for plaintiff. (3) I find no evidence establishing actual fraud on the part of the plaintiff or his agent in making said representation as to the title of said property. (4) The true state of the title was not known to defendants or their agent other than as appears above. (5) Upon this state of facts plaintiff paid Kiene, on November 15, 1878, $100, and received policy No. 100,521, introduced in evidence, and hereby referred to as a part of this finding. (6) On November 15, 1879, plaintiff again paid Kiene $100, and received the renewal receipt, an agreed copy of which was filed, and is hereby referred to as a part of this finding. (7) In June, 1880, the property was injured by fire. (8) Defendants refused to pay the loss, and plaintiff brought suits against them in United States circuit court for district of Iowa, the proceedings and result of which suits are shown by the following documents hereby referred to and made a part of this finding, namely: The original papers and proceedings connected with suits, introduced in evidence here, and the stipulation filed here, January 11, 1883. (9) Upon this state of facts plaintiff brought these actions for the return of the premiums (and certain other premiums not stated above) and interest.” The other premiums paid by plaintiff, referred to in the ninth finding of facts, were upon other policies and renewals issued November 7, 1876, and November 7, 1877. The policies were all issued to plaintiff as the absolute owner of the property insured, while in fact his interest was no other than that of a mortgagee. The facts found by the court, and the others just stated, are in accord with the admissions of the pleadings and undisputed evidence. The court found as a conclusion of law, upon these facts, that plaintiff is entitled to recover no more than the amount of the premium, with interest paid upon the policy last issued November 15, 1879. The two defendants united in the execution of each policy.

2. A condition of the policy provides that “if the interest of the assured in the property be any other than the entire, unconditional, and sole ownership of the property, for the use and benefit of the assured, * * * it must be so represented to these companies, and so expressed in the written part of this policy, otherwise the policy shall be void.” Under this condition each of the policies was absolutely void, and incapable of binding or being enforced against defendants. And in an action upon the one last issued its invalidity was pleaded by defendant and adjudicated by the court. As the other policies in no respect differ as to their conditions, or the facts pertaining to each contract, upon which its validity depends, each is, in fact, involved in law, and defendants cannot now be heard to deny its invalidity. We can discover no ground upon which to base a distinction as to the rights of plaintiff under the several policies, and growing out of the transactions. Each presents the case of a payment of money by plaintiff and a failure to receive any consideration therefor, without any fraud or deception practiced by him. It is the simple case of money paid in good faith and nothing in return received. No element of fraud exists which defeats plaintiff's rights. Nor is it a case of voluntary payment, for it was made with the expectation of receiving a consideration in return, which has wholly failed for the reason that the policy did not bind defendants. Under familiar rules of the law, plaintiff is entitled to recover the amount of premiums paid as money had and received to his use. This doctrine has been often recognized by the authorities as applicable in actions for the recovery of money paid as premiums upon policies where the risk did not attach or the contract was void ab initio. Taylor v. Sumner, 4 Mass. 56;...