Boulden v. Phoenix Insurance , 112 Ala. 422 ( 1895 )

McCLELLAN, J.

This is an action by Boulden on a policy of insurance against fire upon a hotel near Birmingham. The policy contained the following condition : “If the interest of the assured in the property be other than the entire unconditional and sole ownership of the property for- the use and benefit of the assured,, or if the building stands on leased ground, or if the prop-' erty hereby insured, or any part thereof, is mortgaged or otherwise encumbered, or if the interest of the assured in the property be not truly stated, then and in every such case this policy shall be void.” The defendant pleaded that the interest of the assured in the property “was other than the entire, unconditional and sole ownership, and that the building in said policy described stood upon leased ground, which facts were not expressed in the written part of the policy, nor so represented to the company.” Upon the theory that this plea was proved the court gave the affirmative charge for the defendant; and that action alone is relied upon by the appellant to secure a reversal of the judgment.

The burden was on the defendant to prove this plea, and in our opinion,it has failed to do so. There is no evidence that the land on which the insured building was situated was under lease to the plaintiff, but the contrary appears. The evidence as to the assured’s ownership was that of the plaintiff himself given on cross examination as follows : That he owned the land on which the house was situated under a contract, that he.did not' have a deed to it,, and that there was $1,000 due on the land. The fact that plaintiff had no deed did not prove the plea. — Capital City Ins. Co. v. Caldwell Brothers, 95 Ala. 77. If it be conceded that this evidence shows that the vendor held a lien on the land for $1,000 of purchase money, which, to say the least, is not clear, the existence of such lien is not inconsistent with entire, unconditional and sole ownership by the plaintiff, and does not support the plea. The court, therefore, erred in giving the affirmative charge for the defendant.

Reversed and remanded.'