INSURANCE CO. OF NORTH AMERICA v. O'BANNON, 206 S.W. 814

GREENWOOD, J. The defendant in error recovered a judgment against plaintiff in error in an action on an insurance policy, which was affirmed by the court of civil appeals (170 S. W. 1055), and this writ of error is prosecuted to reverse those judgments. The property insured was a one-story frame dwelling in the city of Sherman.

On December 21, 1912, as the result of negotiations extending over about one year, defendant in error, who then owned the dwelling and the land on which it stood, conveyed the land, by warranty deed of himself and wife to the trustees of the Sherman independent school district, for a recited consideration of ?9,000 in cash.

The trustees contemporaneously delivered back to defendant in error a written acknowledgment that under the real contract between the parties the buildings on the land were to he retained by defendant in error and wife, who were to have a reasonable time, but in no event to be longer than February 1, 1913, to remove the buildings from the land, and that only $4,500 of the purchase money had been actually paid, and the remaining $4,500 was to be paid on.the removal of said buildings. While the policy of insurance was in force, on January 17, 1913, the house was destroyed by fire.

At that time tbe bouse bad not been removed from the land conveyed to tbe trustee, but arrangements bad been made by defendant in error to have tbe work of removal begun on the Monday next following the date of the fire. The insurance policy is in the form adopted for Texas by the state insurance board, being identical with the New Fork standard form.

The following are the provisions on which plaintiff in error relies to defeat the payment of the policy, to wit: “The entire policy * * * shall be void * * * if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple, * * * or if any change, other than by the death of an insured, take place in the interest, title, or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or judgment or by voluntary act of the insured, or otherwise.” It is admitted that the insured was the unconditional and sole owner in fee simple of the land, including the dwelling, at the time of issuance of the policy; and, since the language of the policy clearly admits of the construction that the clauses forbidding that “the interest of the assured be other than unconditional and sole ownership,” and that the building insured be “on ground not owned in fee simple,” both relate to tbe time of issuance of tbe policy, we cannot doubt that tbis construction should he adopted in order to avoid the never-favored forfeiture.

Dumphy v. Commercial Union Assurance Co., 107 Tex. 111, 174 S. W. 814; Bills v. Hibernia Ins. Co., 87 Tex. 551, 29 S. W. 1063, 29 L. R. A. 706, 47 Am. St. Rep. 121. In the case of Parsons, Rich & Co. v. Lane (In re Millers & Mfrs. Ins. Co.) 97 Minn. 98, 106 N. W. 485, 4 L. R. A. (N. S.) 231, 7 Ann.

Cas. 1144, cited with approval in the able opinion of the Court of Civil Appeals, it is-said: “The policj' provides that ‘this entire policy * * * shall be void * * * if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on a ground not owned by the insured in fee simple.’ “There are some authorities which hold that this provision refers only to subsequent changes in the title, but they rest upon an unnatural construction of the language of the policj'.

The words used refer to the present, and not to the future, and the conditions' relate to facts as they exist at the date of the policy.” The remaining clause relied on by plaintiff in error plainly relates to the future,, and declares a forfeiture to follow— “any change, other than by the death of an insured, in the interest, title, or possession of the subject of insurance, except change of occupants without increase of hazard.” The property was still in the possession of defendant in error when the dwelling burned, but it is claimed that such a change had taken place in both his interest and title as to prevent his recovery.

Given a reasonable construction, there was no change of “interest” in the subject of this insurance. The Supreme Court of Kansas rightly interpreted the word “interest” when it said: “The word ‘interest,’ as used in the policy, is not synonymous with ‘title’; it means some right different from title; it cannot mean a greater estate than title, since title, as there used, was intended to mean the entire estate.

It must therefore have been used with the meaning generally attached to it, when used in contradistinction to title, as ‘any right, in the nature of property, less than title.’ Anderson’s Law Dict. 562. ‘In the narrower sense it was used, in the English common law of real property, to designate a right less than an estate.’ Century Diet. vol. 4, p. 3142. This we think is the sense in which it was used in the policy. In the

interpretation of the policy this word is important. The form of the policy was intended to cover two classes of risks. There are large interests in real estate owned by persons who have neither title nor possession. The form of this policy is adapted to the insurance of such interests, as well as to the insurance of property where the insured is the owner of the title.

Where the insured is the owner of only an interest in the estate, the word ‘interest,’ used in the forfeiture clause has force, and any change in such interest would forfeit the policy; but where the insured is the owner of the title the word ‘interest’ has no application. In the latter case, if any change takes place in the title, the policy is forfeited.” Garner v. Milwaukee Mechanics’ Insurance Co., 73 Kan. 127, 84 Pac. 717, 4 L. R. A. (N. S.) 656, 117 Am. St. Rep. 460, 9 Ann. Cas. 459. We are equally sure there was no change of “title” within the reason of the language embodied in this policy.

Under the writings between defendant in error, joined by his wife, and the trustees, the title to the subject of insurance — i. e., the one-story frame dwelling — was in defendant in error at the date of the fire.

Even where a forfeiture of the insured’s title to certain buildings was expressly provided for, on failure to remove same by a fixed date, a United States Circuit Court sitting in Massachusetts refused to hold that there urns any breach of this condition, upon the fire occurring prior to the expiration of. the time allowed for the removal; the court declaring; “The land is not insured, and if the actual property covered by the risk conforms to these various conditions as to absolute ownership it would seem to be sufficient.

The assured owned the buildings originally, and it had never parted with any interest in them. While it had conveyed the land upon which they were situated to the city of Boston, it had not parted with either the title or possession of the property insured. It had only agreed that, if the buildings were not removed within a certain time, they should be forfeited.

So far as appears, the assured was preparing to remove them within the time stated; unless a further extension should be gx-anted: Until the ownership was taken away by forfeiture or otherwise, it would seem to be complete.” Washington Mills Emery Manufg. Co. v. Commercial Fire Ins. Co. (C. C.) 13 Fed. 646.

On the same facts, the Supreme Court of (Massachusetts reached the same conclusion, which it expressed in these words: “It is not material whether the clause operates technically as an exception, or as an agreement detaching the buildings from tho realty and making them personal property, which 'was to belong to, and be at the disposal of, the grantor. The buildings were not conveyed to the city, but remained the property of the plaintiff.

It is not necessary to consider what would have been the rights of the parties after October 1, 1878 (the date for forfeiture of the insux-ed’s title for failure to remove the buildings), as the buildings were burned before that time.” Washington Mills Emery Manufg. Co. v. Weymouth Ins. Co., 135 Mass. 504. It is settled law in this state that a fire insurance policy is not violated by a change of title— “not of a nature calculated to increase the motive to burn, or diminish the motive to guard the property from loss by fire.” New Orleans Ins. Co. v. Gordon, 68 Tex. 149, 3 S. W. 720; Home Mut. Ins. Co. v.

Tompkies, 30 Tex. Civ. App. 404, 71 S. W. 813. And, as observed by this court in Gordon’s Case: “Vigilance in the cax'e of the property is not likely to be diminished when the assured is the only one who can possibly suffer by its destruction.” We cannot hold otherwise' than that the entire burden of the loss at thé date of this fire fell on defendant in error, save as he was indemnified by the policy sued on.

There was no breach of any condition of the policy, and the judgments of the district court and of the Court of Civil Appeals are affirmed. <§=3For other cases see same topic, and KEY-NUMBER in all Key-Numbered Digests and Indexes