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Bichmond.

MANHATTAN FIRE INS. Co. v. WEILL & ULLMAN.

April 19.

Absent, Anderson, J.

I. One condition of a policy of insurance on a building is, "if the building insured stands upon leased ground it must be so represented to the company, and so expressed in the written part of the policy; otherwise the policy shall be void"-HELD: The plaintiff may prove that the description of the property was inserted in the policy by the general agent of the company who issued this policy, and that he knew at the time that the building stood upon leased ground.

II. The knowledge of the general agent issuing the policy, is the knowledge of the company, and they receiving the premiums on the policy with that knowledge, are bound by the policy.

III. Another condition of a policy of insurance on buildings is, "if the
interest of the assured in the property be any other than the entire
unconditional and sole ownership of the property for the use and
benefit of the assured, it must be so represented to the company, and
so expressed in the written part of this policy, otherwise the policy
shall be void. The assured had given a deed of trust upon the
building to secure a debt-HELD:

I. This condition does not refer to the legal title, but to the interest
of the assured in the property: that he warranted to be no
other than the entire unconditional ownership of the property.

2. This was no warranty against liens and incumbrances. The as-
sured's interest was the sole ownership. The fact that he had
given a deed of trust to secure a debt upon the property does
not make the cestui que trust a joint owner.

3. There being no pretence of fraudulent concealment or misre-
presentation, by the assured, of the deed of trust upon the
building, the policy is obligatory upon the insurance company.

This was an action on the case in the corporation

1877. March

Term.

March

Term.

Manhattan

Fire

V.

1877 court of the city of Norfolk, brought by Wiell & Ullman, against the Manhattan Fire Insurance Company, to recover the amount of the insurance on a house in said city which had been consumed by fire. On the Ins. Co. trial several exceptions were taken by the defendants. Weill to rulings of the court, and there having been a ver& Ullman. dict and judgment in favor of the plaintiff for the sum of $1,385, with interest from the 1st of November 1873, the defendants applied to a judge of this court for a writ of error and supersedeas; which was allowed. The questions involved in the case and the facts, are stated by Judge Christian in his opinion.

Scarburgh & Duffield, for the appellants.

White & Garnett, for the appellees.

CHRISTIAN, J. The plaintiff in error (the Manhattan Fire Insurance Company) seeks to avoid the obligation of its policy issued to the defendant in error upon two grounds:

First, that the building insured stood upon leased ground, but was not so represented to the company, and not so expressed in the policy.

Second, that at the time of the insurance, the house was encumbered by a deed of trust, which fact was not represented to the company, and not expressed in the policy.

The condition of the policy upon which this defence is based is as follows:

"IV. If the interest of the assured in the property be any other than the entire unconditional and sole ownership of the property for the use and benefit of the assured, or if the buildings insured stand on leased ground, it must be so represented to the company, and

so expressed in the written part of this policy, otherwise the policy shall be void."

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Evidence was offered to prove that the general agent of the company, who issued this policy to defendants in error, knew that the building insured stood on leased ground at the time he issued the policy. There was a motion to exclude this evidence from the jury, which was overruled by the court, and was the subject of a bill of exceptions, which set forth the evidence offered and admitted by the court as follows:

Be it remembered, that after the jury were sworn to try the issue joined in this cause, the plaintiffs to maintain the said issue on their part, after having offered in evidence to the jury (1) the policy, (2) the authenticated copy of the deed of lease, (3) the admissions of the parties, and (4) the proof of loss, as these several matters are set forth in the defendant's bill of exceptions No. 1, introduced (5) R. F. Vaughan as a witness in their behalf, who testified as follows:

"Previous to the first day of January, A. D. 1873, the firm of which I was a member, had been agents for the Maryland Fire Insurance Company, and that company had insured the same building described in the policy of the Manhattan Fire Insurance Company of New York city, mentioned in the plaintiff's declaration, and it was then owned by the plaintiffs, and described in the policy of the Maryland Fire Insurance Company as it is described in the said policy of the said Manhattan Fire Insurance Company. The agency for the said Maryland Fire Insurance Company, before the said first day of January, A. D. 1873, had been transferred from our firm to A. M. Vaughan, and the plaintiffs applied to our firm for a renewal of their policy in the Maryland Fire Insurance Company, but our agency for that company having ceased, and

1877.

March

Term.

Manhattan
Fire
Ins. Co.

V.

Weill & Ullman

1877. March

Term.

Manhattan
Fire

v.

Weill & Ullman.

we having no company in which we could place it, I applied to A. M. Vaughan to take the risk, giving him in writing a description of the said building as it was described in the policy of the Maryland Fire Insurance Ins. Co. Company. I did not then know that the said building stood on leased land. I have ascertained that since. Our firm was then composed of J. C. Deming, R. C. M. Wingfield and myself. A. M. Vaughan then issued the policy sued on, and delivered it to me, and then I delivered it to the plaintiffs, and received from them the premium, and gave A. M. Vaughan credit for it on our books. We retained one-half of the commissions on the premium, and paid the rest of the premium to A. M. Vaughan."

And then the plaintiffs introduced (6) A. M. Vaughan as a witness in their behalf, who test:fied as follows:

"I was, and still am, the agent of the defendant, the Manhattan Fire Insurance Company. R. F. Vaughan, of the firm of Deming, Wingfield & Co., applied to me in behalf of the plaintiffs, for an insurance on the building mentioned in the policy sued on, furnishing me with a written description of the property as it is stated in that policy. In behalf of the defendant I accepted the risk, and issued the policy. At that time I knew that the building stood on leased ground, and if the application had been made to me by the plaintiffs I might have so described it. But supposing that the description in writing furnished me by R. F. Vaughan was the form by which the other companies-those represented by Deming, Wingfield & Co. had written-and the form adopted in their policies, I followed the written description furnished me in making out the policy sued on. I did this, although I knew at the time that the building stood on leased ground; but I do not recollect that this occurred to me at that time."

And then the plaintiffs introduced (7) J. C. Deming as a witness in their behalf, who testified as follows: "I have for several years-ten years-been engaged in insurance agencies, and have done an extensive business in that line in this city. I am not now so engaged. Wingfield and Vaughan were my partners for several years. Both of them were my partners on the first day of January, A. D. 1873. I can't say I know anything about the getting out of the particular policy sued on by the plaintiffs. I can only speak in general terms of what I have done for the plaintiffs. I would state that those gentlemen have for several years confided their insurance business to our firm with special reference to myself. I know the particular property on which the building in suit stood. I have known for some time that it stood on leased ground. I would state that a large number of the companies by common consent have waived a written application for a policy on ordinary risks. I can't say that at the time the plaintiff's stated to me that the building stood on leasehold ground, but I have known that fact for a long while. The reason that I cannot state whether the plaintiffs told me that the building stood on leased ground is, that I rarely made that a question in my practice. I represented two companies, which had given policies on that building, and was a special agent, and adjusted for one of them. They have both paid their pro rata shares of the loss occasioned by its destruction by fire, with a full knowledge of the fact that it stood on leased ground. Each of those policies contained the same general provision as in article IV of the terms and provisions of the policy sued on, and all the modern policies are alike in this respect. I state the fact, that the companies I represented had full knowledge of the fact that the building stood on leased VOL. XXVIII-50

1877. March

Term.

Manhattan
Fire
Ins. Co.

V.

Weill

& Ullman.

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