
    William T. Vaughan, Plaintiff, v. United States Title Guaranty and Indemnity Company, Defendant.
    First Department,
    April 8, 1910.
    Insurance — action on policy insuring title — erroneous direction of verdict..
    It is error to direct a verdict for a plaintiff suing on a policy of title insurance where it appears that in applying for the policy he concealed the fact that he knew that there were serious questions as to the validity of his title, and it is probable that he took the same in anticipation of condemnation proceedings.
    Motion by the defendant, the United States Title Guaranty and Indemnity Company, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, a verdict of a jury in favor of the plaintiff having befen rendered by direction of the court after a trial at the New York Trial Term in October, 1909.
    
      Ferd W. Buermeyer, fbr the motion.
    
      Charles H. Ayres, opposed.
   Miller, J.:

This action is brought on a policy of title insurance. In the early part of the year 1905 the plaintiff employed an attorney, one Vermilye, to get a deed for him of the real property in question, which was situated on the outskirts of the village of Sag Harbor, had not been asséssed for’some time, and was considered of little or no value. The plaintiff knew that the record owner, Maria Hanley, had left Sag Harbor many years before and that her whereabouts were unknown. Sometime thereafter said attorney delivered to the plaintiff an instrument purporting to be a deed, executed and acknowledged by Maria Hanley on the 2.7th day of March, 1905, and the plaintiff paid said attorney $300. A few weeks thereafter the policy in question was applied for by said attorney on behalf of the plaintiff and was, on the 15 th day of Hove tuber, 1905, issued, insuring the plaintiff’s title for the sum of $2,200. The plaintiff testified that he was led to make the' application for the insurance because he had heard that there was a question about his title, that the president of the village said to him one day, “ 1 don’t think much of your title.” On the 25th day of April, 1906, the board of education of the school district of Sag Harbor instituted proceedings to' condemn said real property for a school site and that proceeding resulted in a judgment adjudging that" the plaintiff, the said board of education, was entitled to take and hold said property upon making compensation therefor, and that the deed of the plaintiff in this action purporting to have been executed by Maria Hanley vested no title in him. The.. value of the property was determined to be $2,050.

The defendant asked to go to the jury on the question whether the plaintiff, upon procuring the policy, fraudulently concealed from the defendant facts within his knowledge tending to show that he. did not have a good title. This motion was denied and a verdict directed for the plaintiff. •

. The inference is almost irresistible, that when the plaintiff applied for the insurance he had knowledge of all the facts upon which it was adjudicated in the condemnation proceedings that lie did not have title. He asks to recover in this action upon the ground that a deed procured by liis' agent was a forgery. It is not difficult to infer that said deed was procured in anticipation of the - condemnation proceedings, and it is certain that the contract of insurance in suit was obtained because the plaintiff knew that there was at least, doubt of the validity of his deed. The defendant, upon issuing the title insurance, naturally assumed that the plaintiff’s deed was genn: ine, and the concealment of facts within the plaintiff’s knowledge, tending to show that it was not, was as fraudulent as affirmative misstatements. ■ The plaintiff’s conduct was equivalent to a representation that, so far as he knew, the deed presented by him was genuine.

Even though the plaintiff. was entitled to go to the jury, which it is unnecessary now to decide, it was' manifestly error to direct a verdict, and the exceptions must be sustained and the motion for a new trial granted, with costs to the defendant to abide the 'event.

Ingraham:, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred.

Exceptions sustained and new trial granted, costs to defendant to. abide event.  