Ramer v. American Central Insurance

70 Mo. App. 47, 1897 Mo. App. LEXIS 243

Opinion

Gill, J.

This is an action on a policy of insurance for $1,000 covering a building in Bethany, Missouri. It was expressly stipulated in the policy that it should “be void and of no effect, if without notice to this company and permission therefor in writing indorsed hereon * * * the, property be mortgaged or otherwise incumbered.” It was shown at the trial, and now conceded, that when the policy was issued there was an outstanding and unsatisfied mortgage of $400 on the property, placed there by the plaintiff; that subsequent to the date of the policy plaintiff executed a second mortgage to secure a debt of $100; that both of these incumbrances remained unpaid and unsatisfied when the fire occurred, and that the company had no notice or knowledge of these mortgages until after the property was destroyed.

On this state of facts the circuit judge, sitting as á jury, found in defendant’s favor, and from a judgment in accordance therewith plaintiff appealed.

lNramyAaga¿svtar" readhigpoifjy. The judgment is clearly correct. The undisputed facts show that plaintiff has no legal right to recover. By the express terms of the contract existing between her and the defendant, the policy was to be void, if there was then or should be, without the notice or assent of the company, any mortgage on the property. This provision in the policy constituted a warranty, affirmative and promissory, that is, that at the issuance of the policy there was no mortgage incumbrance thereon, and further that there should be none placed on the property, except with the knowledge and consent of the company. As a warranty, said clause entered into and formed part of the contract itself. It defined by way of particular stipulation and condition the precise limits of the obligation the insurer undertook to assume, and no liability could arise except within those limits. 1 May on Ins., sec. 183.

The authorities cited by plaintiff’s counsel in no way impair the force and effect of the foregoing rule. The policy, having been accepted and held without objection by the plaintiff, constituted a contract binding on both the insurer and assured, and this regardless of the fact whether the plaintiff read it or not.

Judgment affirmed.

All concur.