Opinion
No. 32892.
November 22, 1937.
1. INSURANCE.
A filling station, which was on the land at the time land was leased, was prima facie the property of the lessor, as regards liability of insurer under fire policy providing for unconditional ownership in insured tenant.
2. LANDLORD AND TENANT.
A building constructed by a tenant on leased land becomes a part of the realty and belongs to landlord unless it is removed before expiration of tenancy, or lease provides otherwise.
3. INSURANCE.
Under fire policy requiring unconditional and sole ownership of property insured, insured held not entitled to recover for loss by fire of insured building on leased property which insured had purchased from a prior lessee and which had not been removed from the land by either such lessee or his predecessor, since, in absence of provision in lease therefor, the building became the property of the lessor, and insured was without any interest therein.
APPEAL from the circuit court of Leake county. HON. D.M. ANDERSON, Judge.
Watkins Eager, of Jackson, for appellant.
The policy provided that it would be void if the interest of the appellee in the building was other than sole and unconditional ownership, and the appellee testified that he told the agent at the time the policy was written that he was the sole and unconditional owner of the building, although it was on leased land. It now develops from the testimony that the appellee was not the sole and unconditional owner of the building, but merely a lessee.
The validity of that part of the policy providing that it would be void if the appellee was other than the sole and unconditional owner of the property has been upheld by this court in a number of cases.
Groce v. Phoenix Ins. Co., 48 So. 298; Rosenstock v. Miss. Home Ins. Co., 35 So. 309, 82 Miss. 674; Bacot v. Phenix Ins. Co., 57 So. 729, 96 Miss. 223; Hartford Fire Ins. Co. v. McCain, 106 So. 529, 141 Miss. 394; Levey v. Dyess, 51 Miss. 501; Clymer Opera Co. v. Rural Valley Mutual Fire Ins. Co., 50 Pa. Sup. Ct. 645.
We also call Your Honors' attention to the fact that the appellee in this case was an educated man; that he was a business man holding a responsible position with the Gulf Refining Company, a large corporation; that he had this policy in his possession from the date it was delivered to him to the time the property was destroyed by fire. He is presumed to have read his contract and is bound by the terms of the contract, and cannot claim the benefits now of one of the provisions of the contract and disclaim any knowledge of another provision of the same contract.
Springfield Fire Marine Ins. Co. v. Nix, 138 So. 598, 162 Miss. 669; Maryland Cas. Co. v. Adams, 131 So. 544, 159 Miss. 88; Buhlinger v. United Firemen's Ins. Co., 16 S.W.2d 699.
We respectfully submit that under the undisputed facts and on the positive testimony of the appellee himself and on the appellee's admitted pleadings in the case, the appellant is entitled to have this case reversed and dismissed. It cannot be successfully denied that the appellee was neither the sole nor the unconditional owner of the filling station building. He purchased a lease from Dr. Church and the building was on the land at the time he leased the property. The lease was only for a period of three years, with the right to renew for three years. He did not reserve the right to move the building at the expiration of the lease. Consequently, the building belonged to Dr. Church. In the face of his positive statement to the agent that he was the sole and unconditional owner of the building, and the right of the agent to rely thereon, we respectfully submit that the case should be reversed and dismissed.
F.E. Leach, of Carthage, for appellee.
In the case of Home Insurance Company v. Gibson, 17 So. 13, we find a similar case to the one now under review. In this case the insured occupied the premises under a lease contract and built the building thereon himself, with the express provision that on the termination of his lease the building was the property of the lessor, and the suit was defended by the insurance company on several grounds, one of which was that the insured was only a lessee. The court held in this case that the insurance company was liable and after a thorough review of the facts said: (1) "Knowledge of the agent, who obtained the insurance acquired from the insured at the time of the application, that the latter was only a lessee of the property covered by the policy, is binding on the company with respect to any subsequent renewals of such policy through such agent, notwithstanding the policy provides for absolute ownership, and that no agent of the company shall have power to waive any condition therein. (2). A lessee is not deprived of the right to recover the full amount of the policy by the fact that he had an independent agreement with his lessor, whereby the premium and amount of the policy, in case of loss, were to be shared between them in stated proportions."
Liverpool London Globe Ins. Co. v. Farnsworthy Lbr. Co., 17 So. 445; Phoenix Ins. Co. v. Randle, 33 So. 500; Big Creek Drug Co. v. Stuyvesant Ins. Co., 75 So. 768.
We respectfully submit that in the instant case, W.S. Still, the party who accepted the premium in this insurance policy and delivered the policy to appellee was the agent of appellant to the extent that if the policy was issued on this building after he had been advised that the building was on leased land, then the appellant waived its warranty in the policy and are estopped to take advantage of this clause and defend this cause on this stipulation in the policy. This rule has been specifically announced and adhered to by our court in the cases herein cited and many others not necessary to mention or call to the court's attention.
Home Ins. Co. v. Thornhill, 144 So. 861; 26 C.J. 676.
In 26 C.J., page 678, as to implication of agreement it is held the agreement may be either in express terms or implied from circumstances. The making of such an agreement before annexation may be inferred from the recognition by the landowner, subsequently thereto of rights in another person, and even under some circumstances from his mere acquiescence in the act of annexation.
Duke v. Shackleford, 56 Miss. 552.
We respectfully submit that a parole agreement as to the house insured being the property of the appellee and his grantors would be binding even on Doctor Church; and this agreement is implied from the various sales and from the subsequent lease of Doctor Church to appellee, which lease contract specifically leases the lot and not the building or filling station; while we concede that if Doctor Church had sold this lot without notice to his vendee, and this action was between appellee and the vendee of Doctor Church the rule would be different.
We respectfully submit that the issues of facts in this case as to ownership of the building and the ownership of the land on which the same was situated, was submitted to the jury under the pleadings in this case and the proper instructions of the court, and that the correct verdict was reached and the correct judgment was entered; and consequently that the case should be affirmed.
Argued orally by W.H. Watkins, Jr., for appellant.
This is an action by the appellee on an insurance policy issued by the appellant on a building. One of the provisions of the policy is: "This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void, if . . . the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple. . . ." At the close of the evidence, the appellant requested, but was refused, an instruction directing a verdict in its favor.
The building was situated on leased property; but, according to the evidence for the appellee, the appellant's agent, who received the application for the policy and delivered it when issued, was advised by the appellee of that fact when the policy was applied for. Consequently, the appellant abandons that feature of its defense, but says, in effect, that the evidence not only does not disclose that the appellee was the unconditional and sole owner of the building, but fails to disclose that he had any ownership whatever thereof.
What the evidence discloses is that the building is on land owned by L.O. Church and leased by him to the appellee. The lease provides, among other things, that the "party of the second part (the appellee) shall have the right to remove any and all pumps, tanks and/or other fixtures which may be placed on said described property by him or his assigns or successors in title." The building insured was on the land when this lease was executed, and therefore, prima facie, was then the property of the lessor. In 1935 the land was leased by Church to Alford. It does not appear whether this lease was in writing or not, and no evidence of its provisions was introduced. Alford constructed the building in 1935 for use by him as a part of an automobile filling station. He sold it to Laird by a writing not introduced in evidence, and the terms thereof do not appear. The appellee bought the building from Laird and leased the land from Church, the owner thereof.
A building constructed by a tenant on the leased land becomes a part of the realty and the property of the landlord, unless, under circumstances not here necessary to set forth, it is removed from the land before the expiration of the tenancy, or the lease under which the land is held otherwise provides. This building was not removed from the land by either Alford or Laird; and as the lease under which they held the land is not before us, we are without evidence on which to say that Alford had the right to sell the building to Laird, or that Laird had the right to sell it to the appellee. We have left out of view that the sale of the building to the appellee was not evidenced by a writing and express no opinion thereon. The appellee having failed to disclose any title whatever to the building, the appellant's request for a directed verdict should have been granted.
Reversed, and judgment here for the appellant.