Insurance Co. of North America v. Pitts , 88 Miss. 587 ( 1906 )

Caliioon, I.,

delivered the opinion of the court.

The insurance company sought to defeat recovery of a fire loss because of two clauses in the policy, declaring that it should be void: (1)’ “If the interest of the insured be other than unconditional and sole ownership;” (2) if the building “be or become' vacant or unoccupied, and so remain for ten days.”

As to the first, the facts are that at the date of the policy Pitts was in possession under a conveyance of title in fee simple. But the conveyance recites a cash payment of $200 and four deferred annual payments of $200 each. It does not expressly reserve a vendor’s lien to secure the deferred payments, but our law gives that. It is to be noted in this record that there was no written application for the insurance, nor any representations made. The policy was issued pursuant to telephonic request to an agent, and so-the reliance of the company is on the terms of the policy itself, with no pretense of any misrepresentations. We have no .trouble in taking alignment with those decisions holding that Mr. Pitts was sole and unconditional owner in the purview of the law, notwithstanding there was a debt for purchase price. Union Ins. Co. v. Nalls (Va.), 44 S. E., 896; Milwaukee Insurance Co. v. Rhea, 123 Fed. Rep., 9 (60 C. C. A., 103) ; Ellis v. Insurance Co. (C. C.), 32 Fed. Rep., 646 (19 Cyc., 693) ; Morolock Ins. Co. v. Rodefer (Va.), 53 Am. St. Rep., 846, and notes.' Strict construction as against the insurer is the rule, and the clause relates to the legal character of the title. In Insurance Co. v. Cochran, 77 Miss., 348 (26 South. Rep., 932), there was a written application for the insurance, and in it a deliberate misstatement that the applicants were the sole and unconditional owners, whereas, .in fact, they owned only an undivided one-half interest. This case can have no influence on that at bar. The decision was clearly correct. In Rosenstock v. Insurance Co., 82 Miss., 674 (35 South. Rep., 309), Rosenstock, the insured, was the vendor of the property, not in his possession, but of which he had put his vendee in possession, to whom he was under written agreement to convey on payment of a purchase price of which he had actually received much more than one-half. He could not be regarded as unconditional owner. He was owner only on the express condition to convey. This decision does not affect the case before us, as its reasoning demonstrates.

• On the second contention the facts are that, pending the policy, the premises were at one time vacant for more than ten days, but actual possession was resumed, and some time afterwards, and while occupied, the fire occurred. If the loss had occurred during the prohibited vacancy, there could be no recovery. This is everywhere held, and so decided by our own court in Insurance Co. v. Scales, 71 Miss., 975 (15 South. Rep., 134). Authorities are not wanting to sustain the views of learned counsel for appellant, and they are sustained also by Mr. Ostrander on Fire Insurance (2d ed., 1897), sec. 145, and the numerical weight of..the decisions he cites in note 5. We prefer to stand on the manifest trend and weight of modern authority, Born v. Home Ins. Co., 110 Iowa., 379 (81 N. W. Rep., 676), and on Freeman’s note to that case in 80 Am. St. Rep., 310; Elliott on Insurance, sec. 205, and the other citations of the briefs for appellee. If the insurance had been for three years or more, and the premium paid, and the vacancy during the first month, and the fire afterwards and during occupancy, it would be very unfair to deprive the insured of protection. The common people who insure should not be entrapped by a harsh construction of a technical word. The insurance is revived by occupancy, though suspended during the vacancy.

Affirmed.