Elliott v. Ashland Mut. F. Ins. , 117 Pa. 548 ( 1888 )

Opinion,

Me. Justice Clabk:

The policy in suit was “ issued instead of one bearing the same number upon payment by the insured of the policy fee of one dollar, as per resolution of the directors extending the-time of all renewed policies to five years.” It was not in the form of a renewal; it would seem to have been intended as an extension or continuance of the renewal policy of March 18,. 1881. Both bore the same number, referred to the same application, and were upon the same property; one was given “instead” of the other, “extending the time ” to five years. It may be, therefore, that neither the policy nor any of the bylaws iequired a disclosure of the intervening incumbrances; but it is plain, that by the 16th condition of the policy, the-contract of insurance had, on December 30, 1882, ceased to exist. Under a proceeding at law, the property insured had been levied upon by the sheriff, and on that day the interest, of the assured was sold, and one Charles G. Murphy became the purchaser and owner thereof. After that, for almost a. year, Elliott had no title whatever in the property, and, of course, there could be no valid subsisting insurance, where-there was no insurable interest. There would be nothing, in such case, for the policy to operate upon.

It was competent, however, for the company, after the agreement of December 31, 1883, by the terms of which Murphy had agreed to convey to Elliott, to waive the forfeiture caused, by the sheriffs sale; in which event the obligation of the policy would re-attach, and the contract be continued. If the policy of March 18,1884, upon which this suit was brought, was issued as an extension of the previous policy of 1881, with notice of the change which had taken place in the title, it was certainly, in itself, an express waiver in writing of the forfeiture, which had previously occurred.

It was one of the conditions of the policy, that if the interest in the property was “ a leasehold or other interest, not fee simple absolute, it must be stated in the policy, otherwise the same shall be void.” The contention of the company is, that Elliott’s interest was under the agreement of December 31. 1883; that his title was not absolute or in fee simple; that the condition of the title was not stated in the policy, and that therefore the policy was void. But the agreement with Murphy was for a conveyance of the fee; Elliott thereby became the equitable owner of the property subject to the payment of the purchase money, which was a lien or incumbrance upon it, and this, as respects the contract of insurance, was equivalent to the fee: Penn. Ins. Co. v. Dougherty, 102 Pa. 568. “ When a policy provides, that if the title is not absolute it must be so stated in the policy or it shall be void, the question is, first, whether the insured had really an insurable interest in the property; and second, whether, if the property is destroyed, the entire loss falls upon him:” Wood on Fire Insurance, 195, citing Hough v. City Fire Ins. Co., 29 Conn. 10. See, also, Washington Fire Ins. Co. v. Kelley, 32 Md. 421; Lorrillard Fire Ins. Co. v. McCulloch, 21 Ohio 176, and Pelton v. Ins. Co., 77 N. Y. 605.

The cases in this court are to the same effect. After a contract for the sale of real estate, the purchaser is the equitable owner thereof and, being responsible for the purchase-money, is liable to the whole loss that may befall it, including the loss of the buildings by fire: Reed v. Lukens, 44 Pa. 200. He is not guilty of misrepresentation if he state that the premises are Ms, although he has not paid the purchase money: Coursin v. Penn. Ins. Co., 46 Pa. 323. Upon this ground, it was held in Millville Mut. Co. v. Wilgus, 88 Pa. 107, that, for the ' purpose of insurance, the holder of an equitable title, under articles of agreement, may be said to be vested with the entire unconditional and sole ownership. This question has been more fully considered by this court, in a very recent case in the Eastern District, Dunham for use, etc. v. Imperial Fire Ins. Co. of London, ante p. 460, and we think it is unnecessary to further discuss it here.

The substantial question for the jury was, whether or not, at the issuing of the policy of March 18, 1884, the company ‘ had notice of the sheriff’s sale to Murphy, and of the agreement of Murphy to reconvey the property to Elliott. It must be conceded that the evidence on this point was meagre, and to some extent unsatisfactory, but there was some evidence, enough we think to send the case to the jury. We do not desire to discuss the testimony; in so doing we might prejudice the next trial; but having stated the law applicable to the case, and suggested the questions of fact, which were proper for the jury, we send the case back for another trial.

The judgment is reversed, and a venire facias de novo awarded.