Hogue v. Farmers' Mutual Fire Insurance Co. , 116 Wis. 656 ( 1903 )

Maeshall, J.

We bave here an action on an insurance •contract wbicb unequivocally provided that all rights of tbe assured under it should be forfeited if tbe insured incumbered tbe property involved subsequent to tbe application for tbe policy without notice thereof to tbe insurance company; the undisputed fact, and distinct finding of tbe court accordingly, that tbe property was so incumbered; no evidence of •any fact nor any finding showing a waiver of tbe consequent forfeiture; and yet a judgment that tbe policy contract was binding upon tbe insurer in face of its insistence upon tbe benefit of tbe stipulated forfeiture. Tbe mere statement of tbe situation, it would seem, is all that need be said for an opinion upon wbicb to base a decision reversing tbe judgment.

We are unable to understand from tbe record, or very dearly from tbe argument of tbe learned counsel for respondent, by what course of reasoning tbe learned court reached tbe conclusion complained of. It is suggested that it may be justified upon tbe theory that Hall’s contract witb Vanness was never manually surrendered, nor by any writing, and that since be did not join in tbe contract witb plaintiff by ■signing tbe same, or by some writing, be did not incumber bis interest in tbe property by tbe transaction witb plaintiff within tbe meaning of tbe policy. Tbe further suggestion is made that the mere giving of a bond for a deed, by tbe owner of land, agreeing to- convey tbe same upon payment of tbe purchase money, is not an incumbering of property within tbe meaning of tbe policy. We will give such attention to both of such propositions as they seem to merit.

True, tbe right of a vendee of land under a land contract is an interest in land (Richardson v. Johnsen, 41 Wis. 100), and true, also, such interest in land cannot be surrendered otherwise than by “act or operation of law or by deed or conveyance in writing, subscribed by tbe party creating, granting, assigning, surrendering or declaring tbe same or by bis lawful agent thereunto authorized by writing.” Sec. 2302, Stats. 1898. But that is satisfied by a surrender of tbe contract to the vendor and the acceptance thereof, coupled with an intention by both parties to tbe transaction to extinguish tbe vendee’s equity under tbe contract (Hutchins v. Da Costa, 88 Wis. 371—375, 60 N. W. 427), or by tbe doing of any other act or acts by tbe vendee inconsistent with tbe continuance of bis interest in tbe land under bis contract, accepted by tbe bolder of tbe legal title with that view, coupled with acts on tbe latter’s part upon tbe faith thereof, mailing operative tbe doctrine of estoppel in pais. O'Donnell v. Brand, 85 Wis. 101, 55 N. W. 154; Hutchins v. Da Costa, supra; Goldsmith v. Darling, 92 Wis. 363, 66 N. W. 397; Lovejoy v. McCarty, 94 Wis. 341, 68 N. W. 1003; Slaughter v. Bernards, 97 Wis. 184, 72 N. W. 977. Under that rule there can be no doubt that Hall’s dealing with McConnell, after tbe latter became possessed of tbe legal title to tbe land, whereby be accepted from tbe latter a new contract for tbe one with Vanness, such new contract including tbe purchase money to be paid, tbe amount unpaid upon tbe old contract, tbe transaction being recognized by both parties thereafter as evidencing their relative rights in tbe land, operated as a surrender by Ball to McConnell of bis interest under tbe Yanness contract, by operation of law. Tbe same ride applies to tbe transaction in wbicb tbe contract was made between McConnell and plaintiff and bis wife. Tbe surrender by Hall of bis contract witb McConnell to tbe latter, bis acceptance thereof and reliance tbereon in making tbe new contract witb plaintiff and bis wife at Hall’s request for tbe purpose of placing tbe latter’s interest under tbe control of tbe new vendees as security, by operation of law extinguished tbe old contract and tbe vendee’s interest it stood for, so far as necessary, to effectuate tbe intention of tbe parties to tbe transaction.

Tbe idea advanced that tbe giving of a bond for a deed by tbe owner of land to another is not an incumbering of land within tbe meaning of tbe clause of an insurance contract such as tbe one we have under consideration in this case, does not appear to be material, even if good law. Here tbe assured did not merely give a bond to convey bis interest to plaintiff. He in fact, a.s tbe court found, joined in a transáction for tbe purpose of conveying, and which effectually conveyed, all bis right, title and interest in tbe property covered by tbe insurance policy to tbe plaintiff and bis wife as security. It hardly admits of serious discussion that such transaction incumbered tbe property in addition to tbe incumbrances tbereon specified in tbe application for tbe insurance. As we read tbe finding of the trial court, it is to that effect, and clearly should have been followed by a conclusion of law that tbe defendant was entitled to judgment dismissing tbe complaint witb costs.

By the Court. — Tbe judgment of tbe circuit court is reversed and the cause remanded witb directions to dismiss tbe complaint witb costs.