Sowell v. London Assur. Corporation

THE COURT.

This is an appeal from a judgment and order denying a new trial in an action to recover upon an insurance policy, in which action the plaintiff prevailed.

[444]

The complaint in the case alleged that one W. E. Beeson was the owner of the land and buildings insured at the time of the issuance of the policy thereon, and that subsequently thereto said W. E. Beeson sold, assigned, transferred, and set over to the plaintiff all of his interest in the property, and that said W. E. Beeson shortly after said transfer also assigned and transferred to plaintiff all of his interest in and to said policy of insurance, with the consent of the said defendant by its agent indorsed on said policy; that thereafter the said buildings were destroyed by fire. The answer of the defendant denied that at any time said W. E. Beeson was the owner of the lands, premises, and buildings mentioned in the complaint, but alleged that at the time of the issuance of the policy of insurance the said W. E. Beeson represented himself so to be. The defendant also denied the alleged purchase of the said lands and premises from the said W. E. Beeson, for want of information and belief, and further denied upon the same ground that the said W. E. Beeson sold or transferred the said policy of insurance to the plaintiff, or that the defendant through its agent consented to the same. The answer also set up as an affirmative defense the averment that the interest of said W. E. Beeson in the insured property was not such an unconditional and sole ownership thereof as the terms of the policy required.

Upon the trial of the cause it appeared that W. E. Beeson, subsequent to the issuance to him of the policy of insurance, had made a contract of sale of the premises to a party by the name of Beringer, who had gone into possession thereunder, and was in such possession of the property at the time of its transfer by said W. E. Beeson to the plaintiff. After the introduction of this proof it was stipulated in open court between the counsel for the respective parties that “there was no dispute as to the ownership of the property except that after the insurance policy was issued a certain contract of sale was made by W. E. Beeson to a party by the name of Beringer, and that that change in the title, if it was a change in the title, constituted the essence or gist of the defense. ’ ’ This stipulation was agreed to by counsel for the defendant, with the additional suggestion that the contract of sale made with Beringer was prior to the conveyance to the plaintiff of the premises and assignment of the policy.