
    BERNADO CINQUIMANI v. THE CONCORDIA FIRE INSURANCE CO.
    No. 8186
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A . BESS, JUDGE:
    
      
    
   Plaintiff Bernardo Cinquimani seeks recovery for losa under a fire insurance polioy No. 70,22V issued in his favor by the Concordia Fire Insurance Company, defendant herein, upon a certain frame one story/building situated in Mandeville, la., and totally destroyed by fire on Jíecember 19th, 1917. The premium, on said polioy was paid and the property in question was covered by said policy at date of the fire. Proof of loss was duly presented by claimant and liability denied by the Coiqpany. There is no dispute as to these faots but it i3 contended by defendant that plaintiff cannot recover because he was not at any time owner in fee simple of the property destroyed and that he failed, when taking out the insurance in question, to disclose his true interest if any in the property covered by the- polioy. The lines or clauses of the polioy upon which these contentions are pleaded, read as follows:

"•This entire policy shall be void if the insuretasc has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof, or if the interest of the insured be not truly stated wierein."
"This entire polioy, unless otherwise provided by agreement endorsed hereon or added .hereto, shall be void - if the interest of the insured be other than unconditional or sole ownership; of if the subject of this insurance be a building on ground not owned by insured in fee simple."

The evidence is conclusive that from the date of the policy, November 16th, 1917, to the date of the fire, Deoember 19th, 1917, plaintiff was not in possession of any publio notarial title, nor was there any publio registration in his name of such a title, as owner oí qualified owner of the property covered by the polioy. However, plaintiff’s title or muniment of title to the property in question is shown by an original document described as exhibit "P 2" and reading as follows:

Hew Orleans, Ba., May 14, 1917,q I herrty agree to purchase through V. B. Bancaster for $660.00 lot and store on Sirod street, Mandeville, Louisiana, in square 17. Said lot measured forty feet (40'J front by one hundred and ninety feet (£90") deep,, between equal and parallel lines, pay$h$e $60.00 cash, balance $8.00 per month with four per cent (4$) interest.
witS!s6®sáMiiH ”b: cinquimani
E• J•1 BAGUE

Ernest J. Bagur, witness for defendant on direot examination, testified in relation to the above document as follows:

Q. Mr. Bagur, are you the same Ernest J. Bagur who purchased from Armand D. Lancaster, property described in this dooument market DM ?
A. fes, Sir.
Q. Are you the same Ernest J. Bagur who acted through W. B. Lancaster in executing the agreement. Marked
P. £ between Bernado Cinquimani and yourself as owner of the property?
A. Yes*
Q. And thi3 is your signature on the document P 2?
A. Yes.

It is further disclosed by the record that shortly after plaintiff acquired possession of the property he insured it with the defendant company and that from the date of the above document to the date of the fire, plaintiff had nxfc lived upon and was in full possession of the property and had striotly complied with all terms of payment as stipulated in the said contraot to the extent of One Hundred and Six Dollars (|106/00). In other words, possession, coupled with the three essentials of sale , to wit: the thing sold, the price, and the consent, have been clearly established in this oase. (0. 0. Article 2439). The attack herein made by the defendant company against the validity of the sale is not sound in law under the evidence adduoed, for the reason that the exowptions stated in Articles 2275 and 2440 of the Civil Code, to prescribed and customary methods of transfer of Mrueww'able property, are unmistakably present.

It must be noted also that the vendor, as witness ifflr the Company on direct examination relating to the sale has "confessed it when interrogated under oath" and after"actual delivery" has been made of the property sold.

Counsel for defendant Company placeB much rillanee in the oases of PERRIN V. STUYVESANT INS. CO., 140 la. 812, and CARRANO V. THE CONCORDIA PIBE INSURANCE CO. No^ 7613 of the dooket of this Court. These authorities are specially cited in support of the contentions that unconditional ownership by plaintiff of the property covered by the polioy was wholly lacking. We have given careful consideration to those authorities and find them inapplicable to the instant case,for the reason that in each of these eited oases the ruling of the Coart was predioated upon the speoifie finding that at the time of the issuance of the pul-ióles and for some time afterwards and at the moment of the fire which destroyed the property, title to the property in question stood in the State of Xouisiana and not in the insured hy Tirtue of unredeemed tax sales, thus making the"interest of the insured other than that of unconditional and sole ownership". We find in the case before us,facts quite contrary to those above noted, and that Cinquimani's title to the Mandeville property was clearly that of unconditional and sole ownership, made certain by possession- in the vendee as well as by compliance on his part, in every respect with the written terms of sale, to which both vendor and vendee were parties. The clauses of the policy heroin pleaded in avoidance of liability are not available as a de-fence to this suit. At the time of the issuance of the policy we find that there was no concealment or misrepresentation and that ownership in the insured was complete in law and in fact.

It is further contew4*[_by defendant that the trial oourt erred in excluding,upon plaintiffs objection,certain oral testimony offered by defendant for the purpose of explaining the conditions on vihieh the written terms of sale were exeouted, and of showing the circumstances under which plaintiff's actual possession of the property arose. We find no error in the courts ruling.

The Company's counsel in supplemental brief stresses other authorities,among them the case of THOMPSON vs.SHERIFF ET ALS., 40 La. Ann. 712. like analysis of this case shows there was a suspensive condition or agreement t* the contract to sell, inasmuch as the promisor agreeds"to make a title to Thompson when he shall call for same". We think the Court correctly held that the instrument,was because of this dtipulation,only a promise to sell to Thompson, who, it may be also noted,had not, as in the case before us, signed the document.

A> written promise to purchase without a proviso of suspen-sive condition that formal title shall he executed, amounts to a sale between the parties , especially where both parties .sign the Instrument which sets forth the f*mt ox sale and description of property conveyed, and where the purchaser takes possesssion. 11 S. 349; C.C. Arts. 8439, S44«, 8468.

Plaintiff and appellee herein has filed in this Court on date Of Deoember Slst, 19E1, an asnwer to the appeal taken by defendant and appellant, wherein it is prayed that the Judgment of the trial Court be amended so as to award to plaintiff oer~ tad , tain penalties aadr attorneys fees under Act/ 168 of 1908, The transcript of appeal herein taken wa$ duly filed in this Court on March 12th, 1921, Plaintiff's answer to appeal oomes too late for consideration and relief therein prayed for is denied.

The Judgment of the lower Court is hereby affirmed.

January 30th, 1922,  