Allen v. Charlestown Mutual Fire Insurance

Thomas, J.

This is an action of contract upon a policy of insurance. The issuing of the policy and the loss by fire within the time were conceded. The defence rested upon alleged misrepresentations in the application of the plaintiff for insurance : first, as to her title to the land upon which the house stood; and, secondly, as to the relative situation of the house to other buildings.

1. As to her title to the land. The policy is made subject to the lien upon the buildings and the land under them, created by the Rev. Sts. c. 37, § 36. In Smith v. Bowditch Mutual Fire Ins. Co. 6 Cush. 418, it was settled that, in the case of mutual insurance companies, whose policies are issued subject to this lien, a false representation by the insured, as tó his title, will avoid the policy. In that case, it is to be observed, the plaintiff had no legal title to the property, to which a lien could attach; he had only a bond for a deed. By the seventeenth article of the *388by-laws of the Bowditch Insurance Company it is provided, that any policy issued by the company shall be void unless the true title of the assured shall be expressed in the proposal or application for insurance. 6 Cush. 449. This contract of insurance contains no such provision ; and the doctrine of that case is certainly not to be extended.

The case of Davenport v. New England Mutual Fire Ins. Co. 6 Cush. 340, stands upon a distinct ground, the giving an entirely false answer to a material question. It is to be regretted that the report of that case is somewhat imperfect.

The question asked in this application is : Do you own the land on which the buildings stand ? ” Answer. “ Yes.”

The plaintiff derived her title from the will of her husband, which was admitted to probate six years before the plaintiff’s application. Under this will, upon its face, the plaintiff took an estate for life in the subject of insurance.

But the defendants offered to show that the testator left two children; and claimed that the children, not being provided for in the will, took, under the Rev. Sts. c. 62, § 21, the same estate as if their father had died intestate, which, under c. 61, § 1, would be the entire real estate, subject only to the dower of the widow; and that therefore the only title of the plaintiff in the premises insured was a right of dower.

To this view the objection is twofold: first, it is by no means certain that the provisions of Rev. Sts. c. 62, § 21, would apply to a will like this, where but a life estate is devised, and the reversion, as a legal result, goes to the children; secondly, it is not for the defendants, for the purpose of impeaching the title of the plaintiff, to do what the children had never done, although some twelve years had elapsed. If any one can disturb her title, they only can. The plaintiff was then in the possession of the estate under an apparently good title of freehold, which the only persons interested had never sought to defeat, if they had the power.

In saying, then, she owned the land, was the representation substantially true, so far as the fact was within her knowledge ?

The owner of a freehold, in common parlance, as well as undei *389the law, is regarded as the owner of the estate. See the pauper law, Rev. Sts. c. 45, § 1, cl. 4, 5; the tax act, Rev. Sts. c. 7, § 7; the mill act, Rev. Sts. c. 116, § 24. These views seem to be fully sustained by the case of Curry v. Commonwealth Ins. Co. 10 Pick. 535.

The answer is substantially true; and we cannot think parties applying for insurance are called upon to settle, with very great precision, questions of title. The plaintiff’s title gave the defendants a lien, though limited to the life of the insured.

2. The representation of the relative situation as to other buildings. The question was : “ Relative situation as to other buildings ? ” The answer was: “ A dwelling-house and cabinetmaker’s shop with fifty feet.” There was a cabinet shop two feet from the property insured. The defendants contended that the answer implied that the shop was at the distance of fifty feet; that fifty feet intervened. The judge held that the true construction of the answer was, that the buildings were within fifty feet.

It was a question for the court, being the construction of a written instrument, where no question arose as to the use of words of art. It was the correct construction. It is quite common, in an application, to inquire what buildings are within fifty feet of the building to be insured. The answer is correct, as far as it goes. If the defendants desired a more precise one, they should have sought it by additional inquiries.

Contracts for fire insurance are often made by persons but little acquainted with legal forms. They are practical business contracts, to be fairly but liberally construed. The extreme doctrine of literal warranty has not been and should not be applied to them. They are not to be held upon the apices of the law.

Exceptions overruled.