
    The Ohio Farmers’ Insurance Co. v. Ann Britton, Guardian et al.
    A policy of fire insurance was issued by the plaintiff on a dwelling-house “to B.’s heirs,” who were the owners thereof subject to an unassigned dower interest therein of their mother, the widow of B. The application, which was made part of the policy, was made by the widow, and contained a representation that the property wras in the occupancy of the applicant, and was not incumbered. It was stipulated in the policy, that, “ if the premises insured herein be incumbered in any way, this policy shall bo void, unless the true title of the assured, and the incumbrance on the premises, be expressed in the application.” In an action by said heirs upon the policy, to recover the loss insured against, the property having been consumed by fire, the company claimed that the dower interest of the widow was an incumbrance that avoided the policy: Held, Whether the dower right of the widow was an' incumbrance or not, within the above stipulation, she having an insurable interest in the property, the application is to be regarded as referring to that interest, as well as to the interest of the heirs of B., and, hence, that the representation in the application, that the property was not incumbered, was true.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Marion county.
    The original action was brought upon a fire insurance policy issued by the plaintiff in error to the heirs of N. B. Britton, on a dwelling-house, and the furniture, clothing, and provisions therein. The facts necessary to an understanding of the questions decided, áre as follows : In October, 1872, N. B. Britton died intestate, seized of a farm in Big Island township, Marion county, leaving Ann Brit-ton, his widow, and ten children his heirs at law.
    In the years 1874 and 1875, Mrs. Britton and the older children erected a dwelling-house on the farm for the family, which continued to reside therein until the same was destroyed by fire. Five or six of the children were then minors. .
    The dower interest of Mrs. Britton in the premises had not been assigned. On the 28th day of July, 1875, before the dwelling-house was completely finished, she made an application to one John "W. Hughes, an agent of the plaintiff, for insurance upon the dwelling-house, he calling at her residence to make out and receive the application. Among the questions and answers contained in the application were the following: “Are the buildings insured occupied by the applicant or a tenant ? ”• Ans. “Applicant.” “ Is the property incumbered?” Ans. “No.” Then follows a stipulation in the following words: “And the applicant hereby covenants and agrees to and with said company, that the foregoing is a true and full exposition of all the facts in regard to the condition, value, and risk of the property to be insured, so far as the same are known to the applicant and material to the risk.” Signed, Ann Britton. On the 6th day of August, 1875, a policy of insurance, for five years, on said dwelling-house, and the household furniture, clothing, and provisions therein, was issued by the company, on said application, to “N. B. Britton’s heirs,” in the sum of $1,600 on the dwelling, and $600 on the contents. It was provided by the policy that “ the application referred to in this policy shall be considered a part of the contract, and a warranty by the assured,” and that “ if the premises insured herein be incumbered in any way this policy shall be void, unless the true title of the assured and the incumbrance on the premises be expressed in the application.” 0-n the 2d day of October, 1876, the house and contents were consumed by fire. In the action to recover the loss, brought by said heirs, among other defenses, the company set up : 1. That the dower interest of Mrs. Britton in the premises constituted an incumbrance upon the property insured, and, therefore, that the policy was void ; and, 2. That on the day before the fire occurred, the said agent of the company, having learned that some part of said dwelling-house had been saturated with coal oil, was about to cancel said policy, in pursuance of a right reserved in the policy to do so, when it was agreed between plaintiffs below and said agent, that said policy should not then be canceled, but that said plaintiffs should keep watch of the property, and guard it from fire, until instructions to the agent should be received from the home office. This agreement, the company alleged the plaintiffs had failed to comply with.
    With this defense the reply took issue.
    On the trial, the company offered to prove that such arrangement was made between Mrs. Britton and said agent.
    To the testimony so offered the plaintiffs below objected on the ground that Mrs. Britton was not authorized to make said agreement, if the same was in fact made. The court sustained the objection, and the company excepted. The jury returned a verdict for the plaintiff's, which the company moved to set aside, and for an order granting a new trial, on the ground that the verdict was contrary to the evidence. It also moved for judgment on the pleadings, the facts above stated appearing therefrom. The court overruled both motions, aud gave judgment on the verdict. To this ruling company excepted.
    On error, the district court affirmed the judgment.
    
      W. B. Davis, for the motion.
    
      John D. King, contra.
   Boynton, J.

It is not material to inquire whether the unassigned dower right or interest of Mrs. Britton in the dwelling-house insured, ivas, or was not, an incumbrance thereon, within the meaning of the stipulation concerning incumbrances contained in the policy. The application for insurance was made by her, and was, by the terms of the policy, made a part thereof. She had an insurable interest in the dwelling-house, as well as in the household goods therein. The estate of her children was that of tenants in common.

From the time her husband died until the time the dwelling was destroyed by fire, she and her children, many of whom were minors, and incapable from the immaturity of their years to enter into business relations, continuously oecupied the premises, and meantime erected a dwelling-house thereon, without any severance of the interests they respectively owned in the property. In this condition of ownership, and while this relation subsisted, Mrs. Britton made the application for the insurance. She assumed to act for her children without any special appointment or authority. There can be little doubt that she sought to effect insurance of the entire property or ownership in the building insured, as well the interest that belonged to herself, as that which belonged to her children. It is true, she did not, in form, sign the application as their agent, but the policy having been issued to, and accepted by them, we must assume that she was acting for them. But it is equally clear from the application, that she was acting for herself and representing her own interest in the property as well as that of her children. There was nothing on the face of the application indicating that insurance of the property was sought on behalf of any one save the applicant. Indeed, nothing appears on the face of the application tending to show the heirs of N. B. Britton had any title whatever to the property on which insurance was desired. That they had such title is not doubted. Nor is it doubted that Mrs. Britton had an unassigued dower interest therein. If the property should be destroyed by fire, without insurance, both interests would be lost. Hence, when the inquiry was made as to whether the property was incumbered, she would very naturally understand it to refer to the interest that she sought to have the policy cover.

It either had reference to the dower interest of the applicant alone, or it had reference to incumbrances on such interest and that of the heirs combined. Let it be referred to either, and the representation that the property was not incumbered was strictly true, and being true, its effect is not to be destroyed or varied by the circumstance that the policy was issued to the heirs alone. The issuing of the policy to the heirs instead of the widow and heirs was the act of the company. It nowhere appears to have been done in pursuance of any direction given to the company by any one interested in the property, nor upon any statement, oral or written, that Mrs. Britton was acting exeluclusively for them.

We are, therefore, of the opinion, that the dower right or interest of Mrs. Britton in the property actually insured, formed no impediment to the right to recover upon the policy.

The remaining question involves the .correctness of the ruling of the court, that an agreement between the agent of the company and Mrs. Britton, by which she undertook that the plaintiffs below should guard the property from fire until the company could be communicated with, did not bind the heirs unless she was authorized to act for them. This ruling was right. Authoritj»-to bind the heirs by such agreement could not be implied from the relation existing between them and the widow.

Leave refused.  