
    Olmstead v. The Iowa Mutual Ins. Co.
    Insurance condition against incumbrances. A mortgage which is not fully completed and delivered, will not avoid a fire insurance policy containing a condition, that if an incumbrance shall be executed upon the property insured without the consent of the company, the policy shall be void.
    
      Appeal from, Clayton District Court.
    
    Wednesday, May 13.
    Action on a policy of insurance to recover on account of the loss of the building insured by fire. The policy contained the usual condition, that in case “ an incumbrance fall or be executed upon the property insured, the policy shall be void until consent .of the company is had thereto,” etc. A few days before the building was destroyed, plaintiff executed a mortgage to certain parties upon the property insured, but at the time of the loss the mortgage was not stamped and fully completed and deli vered.
    Yerdict and judgment for plaintiff. Defendant appeals.
    
      Elijah Odell for the appellant.
    
      Sloneman, TTpdegraff and Noble for the appellees.
   Beck, J.

It is contended by the counsel of appellant, that the policy was avoided by the mortgage, that the fact of the mortgage being unstamped, without an intent to evade the revenue laws, did not ren<jer it void, and that it was operative so far as to defeat the policy. The contrary view was taken by the District Court, and the jury was' so instructed. Whether this instruction is erroneous or otherwise we need not inquire. (See however Hugus v. Strickler, 19 Iowa, 414.) Without putting the case upon that ground, we unite in the opinion, that, under the evidence, the mortgage had not been delivered, and hence was not an incumbrance in any form. The court correctly instructed the jury on this point of law, and if they had found against plaintiff thereon, their verdict would have been so far contrary to the evidence that a new trial should have been allowed. This being so, the instruction objected to, even if erroneous, was error without prejudice.

Affirmed.  