The fundamental question in this case is whether Davis-Wood Lumber Company, Inc., at the time of the insurance and at the time of the fire, had an insurable interest in a certain dwelling house, etc., described in the petition. The record shows that Viguerie owned and possessed a small tract of land, surveyed and platted by Pugh, surveyor, and which may be called the superior title. The limits of the Viguerie tract conflict with, overlapping the limits of another small, adjoining tract, belonging to New Era Realty Company, as surveyed and platted by Barrow, surveyor, and which may be called the junior title. The limits overlap to the extent of 1.80 acres, but the owners of the respective plots of land were not aware of the conflict and did not learn that any existed until after New Era Realty Company had erected a tenement, consisting of dwelling, outhouses, yard fence, supposing the tenement, dwelling, etc., to be on its own land.
New Era Realty Company erected the buildings in good faith. Davis-Woods Lumber Company, Inc., furnished New Era Realty Company with the lumber and building material used in the erection of the dwelling and other improvements mentioned. Davis-Wood Lumber Company, Inc., supposed that the buildings and improvements for the erection of which it furnished the lumber and material were being erected on the land belonging to New Era Realty Company. The building and improvements were in fact erected within the limits thereof as located and designated by the Barrow survey. The title to the land on which the dwelling, etc., were erected stood on record in the Conveyance Book in the name of New Era Realty Company.
Davis-Wood Lumber Company, Inc., to *Page 766 protect their privilege, as furnisher of materials, caused proper registry to be made of its account in the Mortgage Book and afterwards brought suit against New Era Realty Company on account, praying for recognition of its privilege on the buildings and land on which they were situated, recovered judgment as prayed for, and caused its judgment to be recorded in the Mortgage Book, creating a judicial mortgage against the property.
Under the law, Civil Code, art. 508, a building erected in good faith on land called for by the title of the owner, duly recorded in the Conveyance Book, and within its established limits, belongs to the owner of the land on which the dwelling was supposed to be erected. The erection thus made served to oust the constructive possession of Viguerie, arising from his superior title, and vested actual possession in New Era Realty Company to the extent of the tenements erected. John T. Moore, etc., Co. v. R. R. Co., etc., 126 La. 840, rehearing, page 888, 53 So. 22, 27, citing decisions of the Supreme Court of the United States to that effect. This ownership and possession of the building remained and continued in New Era Realty Company under the terms of the law, article 508, until the owner of the land "reimburse [the owner of the edifices] the value of the materials and the price of workmanship, or to reimburse a sum equal to the enhanced value of the soil." Article 3453 is to the same effect. Laizer v. Generes, 10 Rob. 178; Johnson v. Weinstock, 31 La. Ann. 698; Kibbe v. Campbell, 34 La. Ann. 1163; Hearne v. Victoria Lumber Co., 131 La. 646, 60 So. 22.
Davis-Wood Lumber Company, Inc., the furnisher of the lumber and material and whose account and judgment was duly and timely recorded in the Mortgage Book, had a privilege on the buildings the same as if the buildings had been actually erected on the land of New Era Realty Company. Both titles being recorded in the Conveyance Book, the registry of one was just as much notice of ownership as the registry of the other. It is not claimed that Viguerie or his successor, O'Shaughnessy, ever reimbursed or sought or desired to make the reimbursement required by article 508. The privilege of Davis-Wood Lumber Company, Inc., in such a situation existed against the buildings under the terms of Act No. 298 of 1926, § 11.
About the time of or soon after Davis-Wood Lumber Company, Inc., had registries made as stated and before anything further was done toward the enforcement of its privilege, it was discovered that the dwelling and part of the outhouses were on the Viguerie parcel of land. The good faith of O'Shaughnessy in buying and claiming the dwelling is questioned by plaintiff. O'Shaughnessy no doubt saw, before buying from Viguerie, that the tenements, dwelling, and some of the outhouses were on Viguerie's side of the boundary line, separating his tract from that of New Era Realty Company, and part of one of the outhouses was on the land of New Era Realty Company, and was thereby put on his guard. I think it reasonably sure that O'Shaughnessy knew from Viguerie, before buying, that the dwelling, etc., had been erected by New Era Realty Company.
But be that as it may, Davis-Wood Lumber Company, Inc., for the protection of their interests in the buildings procured insurance thereon from the defendants. The insurance companies were fully informed as to the title situation at the time the policies were issued. The policies were accordingly made to say: "Permission is hereby granted for the property insured hereunder to stand on leased ground or ground to which the title may be questioned." The stipulation was by accident omitted from one of the policies but the error is admitted. Consequently, plaintiff's right under the policy is the same as if no error had been committed.
The insurable interest of the plaintiff in a situation like the present is supported by Vance on Insurance, subject, Insurable Interest, chap. 4, p. 116; Ruling Case Law, vol. 14, subject, Insurance Interest in Property, § 87 et seq., p. 910 et seq.; Permanent Supplement the same; Cyclopedia of Insurance Law by Couch, vol. 2, subject, Particular Interests, Contractors, Builders, Materialmen, § 373, p. 1095; section 432, p. 1223; same author, vol. 4, subject, Title and Ownership of Property, § 941, p. 3259, from which the following is taken: "But if the insurer or its authorized agent at the time of the issuance of the policy had knowledge of the real facts as to the insured's actual interest, title or ownership, the policy is binding, since in such a case the insurer cannot set up non-compliance or non-conformity with the conditions or requirements of the policy as to such title or ownership." A note cites decisions from twenty-three states as supporting *Page 767 the text. There are none from Louisiana, but the case, Bell v. Western Marine Fire Insurance Co., 5 Rob. 423, 39 Am. Dec. 542, cited in plaintiff's brief, supports the insurable interest claimed by the plaintiff.
Viguerie previous to the insurance had sold his tract of land to O'Shaughnessy by title duly recorded in the Conveyance Book. Defendants contend that plaintiff by this sale was divested of any interest in the buildings and had none to insure under the authority of Louisiana Land Pecan Co. v. Gulf Lumber Co.,134 La. 784, 64 So. 713; McDuffie v. Walker, 125 La. 152, 51 So. 100; John T. Moore, etc., v. R. R. Co., etc., 126 La. 840, 53 So. 22; Webster, etc., v. R. R. Co., 129 La. 1098, 57 So. 529; Soniat v. Whitmer, 141 La. 235, 74 So. 916; Westwego, etc., v. Pizanie,174 La. 1068, 142 So. 691. But I do not think those cases applicable to the question in hand. The fundamental question involved in the cases relied on by defendants was one of ownership as affected by our laws on the subject of registry of titles.
In this case the fundamental question is one of insurable interest in a dwelling, erected and situated as stated. The title to the land on which the building stood at the time of the insurance and at the time of the fire stood on record in the Conveyance Book in the name of New Era Realty Company. This record so far as concerns notice of title was just as effective in every way as the registry of the Viguerie title and of that from Viguerie to O'Shaughnessy, Davis-Wood Lumber Company, Inc., have as much right to rely for the protection of its interest on the registry in the conveyance book of the New Era Realty Company title, as have the defendants to urge the registry in the conveyance book of the Viguerie title and of that from Viguerie to O'Shaughnessy. As stated one registry is as effective for every purpose as the other. Defendants understood and recognized the situation and plaintiff's equity and right in and to the buildings and intentionally insured that interest against loss by fire. A fire having occurred, they now urge as a defense against payment of the loss, an error committed in a way not explained except that it was not, by the plaintiff either in the description of the New Era Realty Company plot of ground or by Barrow surveyor in locating it, a risk set out in the policies and accepted by defendants.
I think the judgment appealed from correct in each case, and that same should be affirmed.