stating that where multiple coverages exist within a policy of insurance, i.e., where there is an "apportionment of the insurance," then "each indemnity is in effect a separate insurance"Summary of this case from Liberty Mut. Fire Ins. Co. v. Parish
3 Div. 788.
June 30, 1927. Rehearing Denied May 17, 1928.
Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.
Steiner, Crum Weil, of Montgomery, for appellant.
Counsel argue for error in the rulings assigned, but without citing authorities.
Ball Ball, of Montgomery, for appellee.
For definition of sole and unconditional title and fee-simple title, see 2 Cooley's Briefs, 1330, 1337, 1347, 1369, 1371, 1375; Brown v. Com. F. Ins. Co., 86 Ala. 189, 5 So. 500; Loventhal v. Home Ins. Co., 112 Ala. 108, 20 So. 419, 33 L.R.A. 258, 57 Am. St. Rep. 17; Exchange Underwriters v. Bates, 195 Ala. 169, 69 So. 956; Cap. C. I. Co. v. Caldwell, 95 Ala. 77, 10 So. 355, Com. F. I. Co. v. Allen, 80 Ala. 571, 1 So. 202. Plaintiff being entitled to the affirmative charge on the evidence, errors are without injury. Chandler v. Pope, 205 Ala. 49, 87 So. 539; Hood v. Warren, 205 Ala. 332, 87 So. 524; Bruce v. Citizens' N. Bank, 185 Ala. 221, 64 So. 82.
As we interpret the provision of the insurance policy set up in plea 3, it means that any insurance of property thereby is void if that property is not unconditionally owned by the insured alone; and that any insurance of a building is void if it be located on ground not owned by the insured in fee simple — there being an apportionment of the insurance to the building, and to the other property, severally, so that each indemnity is in effect a separate insurance.
From this view of the policy, it results that plea 3 was a good answer to the first count of the complaint, but not to the second and third counts; but, no objection being taken to its sufficiency as to those counts, defendant was entitled to a verdict upon all of the counts if the plea was proved. Browder v. Irby, 112 Ala. 379, 21 So. 351.
The deed in question was a grant in præsenti, with a reservation of possession in the grantors for five years from its date. Phillips v. Phillips, 186 Ala. 545, 65 So. 49, Ann. Cas. 1916D, 994; Jenkins v. Woodward Iron Co., 194 Ala. 371, 69 So. 646; 18 Corp. Jur. 208, § 113.
According to plaintiff's version of the transaction, he sold this land to the grantee Morris, and delivered the deed, pursuant to their understanding, to one Petrey, with directions to deliver it to Morris at the end of five years from that date. This was not a delivery in escrow, requiring the performance by the grantee of some prescribed condition before final delivery and passage of title, but was an unconditional delivery by virtue of which the legal title passed to Morris eo instanti. Arrington v. Arrington, 122 Ala. 510, 26 So. 152; Strickland v. Griswold, 149 Ala. 325, 328, 43 So. 105; Abney v. Moore, 106 Ala. 131, 18 So. 60.
So it makes no difference whether plaintiff's testimony or Morris' be accepted as true, for in either case plaintiff's title vested in Morris forthwith, and the condition of the policy as to the title of the insured was broken.
Under the pleadings and evidence, therefore, the defendant was entitled to the general affirmative charge, and its refusal was error.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and THOMAS, JJ., concur.