In the opinion ante my associates depart from and overrule, in an aspect, the decisions in Loventhal v. Homes Ins. Co.,112 Ala. 108, 20 So. 419, 33 L.R.A. 258, 57 Am. St. Rep. 17; and Commercial U. Assr. Co. v. Ryalls, 169 Ala. 517, 53 So. 754, wherein, to quote the opinion ante, the "same condition and provision" as to the unqualified character of the insured's interest in the realty "was in that policy as the one in this case." These deliverances construed pertinent provisions of policies that should govern, at this late day, the construction and effect of the like provisions in the policy in suit. The Loventhal Case was decided in 1895, and the Ryalls Case, in which the there pertinent pronouncement was rested upon the Loventhal Case, was decided in 1910; the former over 25 years ago, and the latter 13 years ago. If the doctrine of the Loventhal and Ryalls Cases is assumed to be unsound — a conclusion by no means obvious — departure from the construction there taken of similar provisions should not, in my opinion, be made, because "terms used in a policy which have by prior decisions of the court been given a definite meaning will be presumed to have been used in view of such established construction." 26 C. J. p. 79; Fidelity Casualty Co. v. Lowenstein, 97 Fed. 17, 38 C.C.A. 29, *Page 69 46 L.R.A. 450, 452, 453. If the insurance company drafting the policy, containing the terms construed by the court, was not satisfied with the effect judicial judgment long ago accorded them, it is to be presumed that the author of such policy would have so altered this feature of the instrument as to avert or avoid the effect the court ascribed to those terms.
In the writer's opinion the provisions under consideration should be accorded the construction and effect which this court long since ascribed to them. I therefore dissent from the construction given those provisions in the opinion in this case.