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Beal v. Blair.

Upon the whole case it appears that the trustee strictly pursued the powers conferred by the plaintiff in the trust deed, and the evidence shows, and the jury found specially that, upon the sale of the land by the trustee, the plaintiff voluntarily surrendered possession to the purchaser and has acquiesced in the sale for seven years, and that now, after the lapse of so long a time and numerous innocent persons have become purchasers of different portions of the premises, the plaintiff seeks to recover it back on purely technical grounds, none of which, as we have seen, are tenable. The judgment is in accordance with the law and with justice.

Affirmed.

DAY, J. — A rehearing of this case was granted, upon the petition of appellant, solely on the point therein made as to the uncertainty in the deed of trust through which defendant's title is derived.

A careful reconsideration of the question presented leads us to adhere to the conclusions of the opinion already announced.

Appellant insists that, while there are no other lands in Iowa which answer the description in the deed, yet there is nothing in the deed to show that the lands are situated in Iowa.

Appellee insists that, as a matter of fact, there are no lands in the United States to which the description is applicable, except in Boone county, Iowa. Not having the means at hand of verifying this statement, we applied to the commissioner of the general land office for a statement of the fact, and received information that the combination of township and range, as described in this deed, to wit: Township 84, range 26 occurs nowhere in the United States, but in Iowa, north of the base line, and west of the fifth principal meridian. This settles the certainty of the description beyond doubt or argument.

Hubbard & Spencer v. The Hartford Fire Ins. Co.

There is no other point in the opinion requiring additional notice.

Affirmed.

HUBBARD & SPENCER V. THE HARTFORD FIRE INS. Co.

1. Insurance: COMMENCEMENT OF POLICY. A person applied to the authorized agent of an insurance company for insurance on his property, on the 18th day of the month, and it was agreed that the agent should issue the policy and send it to the applicant on that day. The policy was in fact issued on that day, but was not delivered to the applicant nor the premium received thereon until the 22d of the month. Held, that the policy should be considered as commencing on the 18th, instead of upon the 22d, the date of its delivery. MILLER, J., dissenting.

2. Held, also, where the applicant applied to another company for insurance, and the terms thereof were agreed upon between him and the agent, but the latter having no blank policies executed to the applicant a receipt for the amount of the premium then paid by him, specifying the property to be insured, and stipulating that a policy would be issued as soon as a blank should be received, that the effect of the receipt was to bind the company the same as if a policy had been issued.

3.

4.

5.

The

BREACH OF CONDITION AGAINST OTHER INSURANCE. breach of a condition contained in a policy of insurance, to the effect that in case of other subsequent or prior insurance, without notice to or consent thereof by the company, the policy shall be void, does not render the policy absolutely void, but merely voidable at the option of the company.

In order to avoid a policy on the ground of a breach of the condition respecting subsequent insurance, it must appear that the policy creating such subsequent insurance was valid and enforceable. If invalid the prior insurance is not affected.

INCUMBRANCES. The existence of a chattel mortgage on the property insured is not a breach of a condition in the policy to the effect that if the insured was not the "sole and unconditional owner” of the property, the policy should be void. MILLER, J., dissenting.

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6.

Hubbard & Spencer v. The Hartford Fire Ins. Co.

NOTICE OF LOSS: ESTOPPEL.

A notice by the assured to the company, in accordance with the terms of the policy, that there was subsequent insurance on the property in another company, would not estop him from claiming in an action against the first company, that such subsequent insurance was invalid.

Appeal from Hardin District Court.

THURSDAY, JANUARY 27.

ACTION upon a policy of insurance issued to C. K. Howe against loss by fire to the amount of $2,800 on his stock of hardware and tinware, and, subsequently to the destruction of the property insured by fire, assigned to plaintiffs. Upon a trial to a jury there was a verdict and a judgment thereon for the amount of the policy and interest. Defendant appeals. The facts of the case are set out in the opinion.

Adams & Robinson and O. P. Shiras for the appellants.

Miller & Miller and Griffith & Knight for the appellee.

1. INSURANCE: commence

policy.

BECK, J.-The policy, which is the foundation of this action, contains a condition in the following words: "If the assured shall have or shall hereafter make ment of any other insurance upon the property hereby insured, without the consent of the company written hereon, in such case this policy shall be void." As a defense the defendant alleges that, in violation of this condition, the insured, Howe, did cause the property to be insured by a policy issued by the Phoenix Insurance Company, January 21, 1867. The policy sued on is dated January 19, 1867.

It appears from the evidence that Howe applied to the agent of defendant on the 18th day of December, 1867, for insurance, and it was arranged that the policy should be

Hubbard & Spencer v. The Hartford Fire Ins. Co.

issued and sent to him on that day. Howe, not having received the policy from defendant's agent, nor heard from him in regard to the business, on the 21st of the same month applied to the agent of the Phoenix Insurance Company for a policy covering his property. The terms of the insurance were agreed upon, but the agent, having no blank policies, executed a receipt to Howe for the amount of the premium then paid him, specifying the property to be insured, which was the same covered by the policy issued by defendant, and stipulating that a policy would be issued as soon as a blank should be received. The agent of the Phoenix Company was not informed by Howe of his application to defendant's agent for insurance, and it appears that Howe, at the time, did not expect to receive the policy of defendant, as it had not been sent to him according to the prior arrangement. On the 22d, the day subsequent to the transaction with the agent of the Phoenix Company, the agent of defendant delivered to Howe the policy sued on, dated on the 18th, and received payment of the premium. Howe did not inform him of his transaction with the Phoenix Company. The property covered by these policies was destroyed by fire on the 26th. Under these facts defendant insists that the transaction with the Phoenix Insurance Company is in violation of the conditions of the policy against other insurance quoted above, and that defendant's contract is avoided. thereby.

The question here presented is of very great difficulty, and its solution, either upon principle or authority, is not entirely free from doubt. Two preliminary questions may be considered, the determination of which will aid in reaching the final conclusion upon this point.

1. Which was the prior insurance, that by the defendant or the Phoenix Company? It quite satisfactorily appears to us that the policy issued by defendant must be considered as commencing on the 18th, the day of its date.

Hubbard & Spencer v. The Hartford Fire Ins. Co.

It was, in fact, issued on that day and the premiums covered the time intervening between that date and the day of its delivery the 22d. Defendant after having collected the premium and delivered the policy, bearing date on the 18th, cannot be heard to deny that the policy did not operate until its delivery. If the policy did not bind defendant until the 22d, then has defendant received premiums for the time intervening before that date and the 18th which it has not earned. But this it cannot be per

mitted to claim.

2. What was the effect of the receipt given by the agent of the Phoenix Ins. Co.? It must be conceded that, if it bound the company at all, and its binding effect cannot be denied, it raised a contract of insurance in all respects like the contracts of the company as expressed in the policies commonly issued by them. The agent was not clothed with power to vary or change the policies of the company and it cannot be presumed that such a thing was contemplated by either the agent or the assured when the receipt was executed. The transaction then was a contract for insurance upon the usual terms and conditions as expressed in the policy which the agent was empowered to issue. It is shown by the evidence that the policies of the Phoenix Company contained a condition similar to the condition of the policy sued on against prior or subsequent insurance, without consent of the company indorsed on the policy, and declaring the same shall avoid the contract. It appears that the agents were authorized to issue policies of this form and that they embodied the contracts of insurance as commonly entered into by the company. The contract therefore between the Phoenix Company and Howe must be considered as containing a condition against other insurance as above stated.

We now have the case of two policies given at different dates covering the same property, each having a condition against other insurance, both prior and subsequent, and

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