dissenting.
Anne Bolling obtained in her own name seven fire insurance policies on a building and the fixtures and stock of merchandise therein. The building did not belong to her; she did not have either the legal or equitable title to it, or any legal interest in it whatsoever. Her father-in-law, Henry Bolling, was the owner in fee simple. He did not purchase the policy (one of the seven) now being sued upon, nor did Anne Bolling purchase it for his benefit. After the building was destroyed by fire, Anne Bolling instituted an action on the policy in her own right for the full amount of the policy as she would have done had she owned it in fee.
Anne Bolling used the building as a store, but not under any lease or contract from Henry Bolling, the owner. The most that can be said of her relation to the building and its owner is that he acquiesced and consented to her occupancy, charging her no rent therefor and verbally promising that he would give it to Anne Bolling and her children at some indefinite time in the future. In the eyes of the law she was a tenant at will.
The majority are permitting Anne Bolling to recover in her own right the full amount of the policy on the building just as if she owned the fee, when the loss of her occupancy is all that she has the right to be indemnified for, if we assume that the hazard of such loss of occupancy constituted an insurable interest. It is inconceivable that the court would allow her to recover more than her insurable interest, if she had such interest. That portion of the recovery which exceeds her indefinite and unascertained loss on the building does not belong to her, yet under the opinion of the majority she will be unjustly enriched to the extent of that excess.
It must be admitted that no one should be permitted to be indemnified by a fire insurance policy for more than his loss. One owning less than a fee in a building which has been insured has the burden of proving his interest (if it *198is put in issue as was done here) when he sues the insurance company on an indemnity policy of fire insurance.
Here, the quantum of the assumed insurable interest of Anne Bolling on the building has never been determined. It necessarily measures her loss and it is against public policy for her to recover more than her loss. She cannot recover for the loss sustained by the owner, Henry Bolling, because she is suing in her own right and for her own benefit—not for his benefit. He could not proceed against the company because he had no policy.
Until such loss as Anne Bolling has sustained by reason of the destruction of the building has been determined by the court upon proper evidence, no judgment can correctly be rendered in her favor. The defendant, in offering instruction No. 1, sought to have the court instruct the jury to this end, but the court refused the instruction. This action, it seems to me, is clearly reversible error. This instruction, if it had been given, would have compelled the jury to ascertain her insurable interest in the building in order to measure her loss or damage.
In the policy sued on, which was one of the seven similar policies, $1,260 of insurance was issued, distributed as follows : $200 on the store building, $860 on the stock of merchandise, and $200 on the furniture and fixtures. There was a clause providing that the company should not be liable for more than three-fourths of the actual cash value of the property at the time of its destruction. If this sum exceeded the face of the policy, then, of course, the amount of recovery would be limited to the face of the policy.
The total amount of Anne Bolling’s loss, so far as this policy is concerned, was fixed by the jury under instruction No. 3 at $1,680, and the amount of their verdict was $1,260, the face of the policy. The only loss plaintiff has sustained, with respect to the building, is the deprivation of the uncertain occupancy and use permitted her by Henry Bolling. However, the court is permitting her to recover not only for this-loss, which is well-nigh ■ undeterminable, but also for the full face of the policy on the total value of the fee *199in the building, $200, while'the loss of the fee in the building was suffered not by Anne Bolling, but by Henry Bolling.
The general rule may be stated to be that the insured with a limited interest in a building insured, may not recover its full value. “In most of the cases where it is apparent that to allow the insured to recover the full value of the property destroyed, within the amount of the policy, would enable him to realize a profit on his insurance, the courts have limited the recovery to the value of the actual interest of the insured in the property destroyed.” See 68 A. L. R. 1344 and the reported case of Harrington v. Agricultural Ins. Co., 179 Minn. 510, 229 N. W. 792, 68 A. L. R. 1340.
According to the annotator the foregoing rule is the law throughout the United States. The opinion of the majority, in allowing Anne Bolling a recovery to the full extent of the fee, is in contravention of this rule.
“If, without more, one insures property of another, the contract of insurance is void and carries with it temptations to crime into which we should not be led. It is against public policy. One cannot be indemnified for loss which he did not sustain.” (Opinion of the majority.)
This principle is sound and is the law everywhere. A contract against public policy is void in its inception and cannot be validated by its parties. “To it the principles of estoppel do not apply.” Ibid. This rule applies to the amount to which Anne Bolling is unjustly enriched, to wit, the excess over and above whatever loss she may have sustained by the destruction of the buiding.
The granting of instruction No. 3, offered by the plaintiff, was also reversible'error because there was absolutely no evidence to support the recital “that Mr. Dennis then wrote the companies in which he proposed to write the insurance, of his interview and prospect, and they authorized him to close this insurance.” The uncontradicted evidence is to the contrary.
It is true that the evidence discloses the fee simple value of the building to have been $2,500. The seven policies on the building aggregated $1,200. The Franklin Case disposed *200of one policy for $200, leaving $1,000 of insurance still in question. While the sum involved in the instant case, so far as the building is concerned, is only $200, the decision here will be conclusive of all the remaining policies, and will in effect establish that Anne Bolling is entitled to $1,000 (exclusive of the recovery in the Franklin Case) for the destruction of a building not owned by her but owned by Henry Bolling.
Anne Bolling’s insurable interest is fixed in the opinion at $2,500, the full fee simple value of the building, while at another place in the opinion her interest is established as only a life estate. Both conclusions are incorrect because there is no evidence to support either.
If Mr. Bolling, the owner, were to die, the land upon which this building stood would pass by his will, if he dies testate, or would descend to his heirs at law, if he dies intestate. Anne Bolling would not be one of his heirs at law, and, of course, we do not know who would be his devisees if he dies leaving a will. She certainly could not be a life tenant if during her lifetime the estate could legally pass to another.
Lastly, in the opinion of the majority it is said that the question of insurable interest and its extent was not raised in the trial court. The question was raised on the motion to strike the plaintiff’s evidence. It was again raised in the instructions, and finally upon the motion to set aside the verdict. That issue is squarely presented to this court by the assignments of error.
For the above reasons I dissent.
Eggleston, J., concurs in dissent.