Queen of Arkansas Insurance v. Taylor

Kirby, J.,

(after stating the facts). It is contended, first, that appellee was not the sole owner of the property insured and not the owner of the fee of the land upon which the house was situated at the time of its issuance, and, having represented himself to be, that the policy was void by its terms, and the appellants not liable thereon.

It is true the policy did contain these provisions, but the agent of the company took appellee’s application for insurance, being informed at the time that he claimed title to the premises as a homestead entry, and understanding therefrom that the house was situated upon land that had been entered as a homestead and had not been proved up and a patent issued. The agent wrote in the application that the insured’s claim of title was a “homestead entry,” and upon this application, sent to the home office, the policy was issued; and, having authority to receive and forward applications for insurance, this information given the agent at the time of making the application was notice to and binding upon his company. Capital Fire Ins. Co. v. Montgomery, 81 Ark. 510.

Without regard to the agent’s understanding of the facts relative to the title, with notice of which it is charged, the company had the application showing the insured’s claim of title was a “homestead entry”, and was thereby put upon inquiry and charged with notice of the actual facts relating to the title, which would easily have been developed upon such inquiry made.

Having issued the policy with notice that the insured was but a homestead entryman and had not yet proved up and obtained a patent from the Government to the land, it is estopped from claiming a forfeiture and avoiding the liability incurred under the policy, because the insured was not the owner of the fee of -the land whereon the building was situate, when it was issued. King v. Cox, 63 Ark. 204, 37 S. W. 877; Insurance Co. v. Brodie, 52 Ark. 11; 2 Clement, Fire Ins., 170; Brooks v. Erie Ins. Co., 78 N. Y. Supp. 748, 177 N. Y. 572, 69 N. E. 1120; Cross v. Nat. Ins. Co. 132 N. Y. 133, 31 N. E. 390; Broadhead v. Lycoming Ins. Co., 14 Hun 452; O’Brien v. Greenwich Ins. Co., 95 Mo. App. 301, 68 S. W. 976; Pope v. Glenn Falls Ins. Co., 130 Ala. 356, 30 So. 496; Am. Ins. Co. v. Donlin, 16 Col. App. 416, 66 Pac. Rep. 249; Home Ins. Co. v. Mendenhall, 164 Ill. 458, 45 N. E. 1078; Allen v. Home Ins. Co., 133 Cal. 29, 65 Pac. 138; Strause v. Palatine Ins. Co., 128 N. C. 64, 38 S. E. 256.

It is not questioned that the insured had an insurable interest in the property destroyed, and the facts show that he had purchased it and was in possession, with the right to claim it against every one but the Government, and with the right to have the title from the Government upon complying with the requirements of the homestead law, and we hold that he did have an insurable interest. Kirby’s Digest, § § 2738, 2739; 19 Cyc. 584.

The sureties were properly joined in the action against the company upon its failure to pay after the loss occurred. Kirby’s Dig. § 4376; American Ins. Co. v. Haynie, 91 Ark. 43; Crawford v. Ozark Ins. Co., 97 Ark. 549.

It is too late for appellants to complain here that the complaint in the action was not signed by counsel nor verified, after having, without objection thereto on that account, filed an answer and gone to trial in the case. It should by proper motion have had the complaint stricken out or signed by counsel and verified.

Neither is there anything in the contention that they were entitled to a continuance and forced into a trial of the cause when they were not ready, since they filed no motion for a continuance, setting up grounds therefor, as the law requires.

The statements made by the insured, after the fire occurred, in proof of loss relative to his ownership must be regarded as having been made in the light of the facts relating thereto as already communicated to the agent and the company, and, if not in fact true, were not intentionally false, nor false at all under the circumstances, and no forfeiture was incurred on account thereof. German-American Ins. Co. v. Brown, 75 Ark. 251; 19 Cyc. 855.

The insured was entitled to interest from ninety days after the proof of loss was received by the company, under the terms of the policy, and, the loss not having been paid within the time specified after demand made therefor, to the penalty provided by law, as well as a reasonable attorney’s fee to be taxed by the court. Ark. Ins. Co. v. McManus, 86 Ark. 115; Pac. Mutual Life Ins. Co. v. Carter, 92 Ark. 378.

We find no error in the instructions given, and no prejudicial error in the record of this cause, and the judgment will be affirmed.