Westchester Fire Ins. Co. v. Weaver

• Decision Date: 12 June 1889
• Citation: 18 A. 1034,70 Md. 536
• Parties: WESTCHESTER FIRE INS. CO. v. WEAVER ET AL.
• Court: Maryland Court of Appeals

18 A. 1034

70 Md. 536

WESTCHESTER FIRE INS. CO. v. WEAVER ET AL.

Court of Appeals of Maryland

June 12, 1889

For majority opinion, see 17 A. 401.

MILLER, J., (dissenting.)

I am constrained to dissent from that part of the opinion of the majority of the court in this case which construes the condition that the policy shall be void "if the interest of the assured in the property, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee, or otherwise, is not truly stated therein." The court holds that the non-disclosure of a mortgage on the insured property comes within this condition, and renders the policy void. To this I cannot agree. The policy does not call in specific terms for the disclosure of mortgages or other incumbrances. It might just as well be said that, if the insured party had a judgment against him on which execution had been issued, he would be bound to disclose that fact, or the policy would be void. If the condition that the assured must be "the sole and unconditional owner of the property" is not violated by the non-disclosure of a mortgage, where the mortgagor is the insured party, I am unable to find anything in the terms of this condition making such disclosure essential. If the insured is a mortgagee, he must disclose his title; and for obvious reasons. A mortgagee is not usually in possession, and this fact is important to be known by the insurer. But a mortgagor in possession may well be relied on to take proper care of the insured property. In fact, the mention of a mortgagee, and not of a mortgagor, in this condition leads strongly to the inference that the latter was not intended to be included in it. In my judgment the reasoning in the opinions in Insurance Co. v. Kelly, 32 Md. 421, and Insurance Co. v. Beck, 43 Md. 358, should control the decision in this case on this point. I am instructed by Judge IRVING to say that he concurs in this opinion.