Rohrbach v. The Germania Fire Insurance Company. the judgment must be reversed, it is not of moment to consider them further. The judgment must be reversed and a new trial ordered. Judgment reversed. ROHRBACH V. THE GERMANIA FIRE INSURANCE COMPANY, appellant. (62 N. Y 47.) Fire insurance- - insurable interest — description of property-statement as to interest· when company not bound by knowledge of agent. A married woman, being indebted to her husband, gave him a written acknowledgment of the debt "which shall be a lien on my property," and afterward died leaving insufficient personal assets to pay her debts and but one parcel of land, valuable chiefly for the buildings on it. Held, that the husband had an insurable interest in the buildings. A policy insured plaintiff "on his two buildings." He did not own the buildings, but had an interest in them and was in possession of them. Held, not a warranty of ownership, nor a material misrepresentation. A policy of insurance provided that if the interest of the assured in the property was other than the entire, unconditional ownership, it must be so represented to the company and so expressed in the policy. To the question in the application "Is your title to the property absolute?" the assured answered "His deceased wife held the deed." The assured had only an equitable interest in the property and possession. Held, not such a full and true statement of the facts as the condition required, and that the policy was void. A policy of insurance provided that the agent taking the application should be the agent of the applicant and not of the company under any circumstances whatever. Held, that the company would not be bound by the knowledge of the agent acquired when the application was made. A CTION upon a policy of insurance, by its terms insuring plaintiff upon "his two framed buildings" situate in the village of Jeffersonville, N. Y. Prior to the 28th June, 1868, the plaintiff had been in the employ of Margaretha Hartmann, and she was indebted to him for his labor and services. On that day they intermarried. On the thirtieth of the same month she executed and delivered to him an instrument, in writing, of the body of which the following is a copy: "JEFFERSONVILLE, June 30th, 1868. "I do hereby certify that I owe to John Rohrbach the sum of seven hundred dollars; and, also, twenty-five dollars for each and every month Rohrbach v. The Germania Fire Insurance Company. from the fourteenth day of July, 1863, and for every month he may live with me henceforth without any deduction whatsoever, which amount shall be a lien on my property." She died intestate July 8th, 1868, leaving personal property of the value of $600, and a lot in said village upon which were the buildings in question. The principal value of the premises was in the buildings. One Armbrust was appointed administrator of her estate. Her indebtedness, other than that to plaintiff, was from $1,200 to $1,400. Her indebtedness to him was about $2,100. Plaintiff continued in the use and occupation of the buildings. In December, 1868, plaintiff negotiated for insurance on the buildings with one Brand, who was the agent of defendant, authorized to procure and submit applications, and to issue policies furnished him by defendant, signed by its officers, which were to be countersigned by him. Plaintiff showed to Brand the said instrument, and related and explained to him all the facts and circumstances. Plaintiff was a German, he could not read or write English. Brand filled out the application, giving, as he testified, his conclusions and the facts he deemed material, and the plaintiff signed it. The material part of the application was as follows: "Application of John Rohrbach, of Jeffersonville, State of N. Y., for insurance against loss or damage by fire for the period of one year from 26th day of December, 1868, to 26th day of December, 1869, at noon, by the Germania Fire Insurance Company of the City of New York, in the sum of ten hundred dollars, upon the property specified below: "On his frame 2-story building, occupied by insured as a dwelling and saloon. Sum to be "The applicant will answer fully the following question : "Title Is your title to the above property absolute? If not, state its nature and amount. 66 Ans. His deceased wife held the deed. "And the said applicant hereby covenants and agrees to and with the said company, that the foregoing is a just, full and true exposition of all the facts and circumstances in regard to the condition, situation and value of the property to be insured, so far as the same are known to the applicant, and the same is hereby made a condition of the insurance and a war ranty on the part of the insured." The policy contained these clauses, among others: "I. If an application, survey, plan or description of the property herein insured is referred to in this policy, such application, survey, plan Rohrbach v. The Germania Fire Insurance Company. or description shall be considered a part of this contract, and a warranty by the assured; and any false representation. by the assured of the condition, situation or occupancy of the property, or any omission to make known every fact material to the risk, or an overvaluation, or any misrep resentation whatever, either in a written application or otherwise, * or if the interest of the assured in the property, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee, or otherwise, be not truly stated in this policy, and in every such case this policy shall be void. "If the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property, for the use and benefit of the assured, it must be so represented to the company and so expressed in the written part of this policy, otherwise the policy shall be void. "II. It is a part of this contract, that any person other than the assured, who may have procured this insurance to be taken by this company, shall be deemed to be the agent of the assured named in this policy, and not of this company under any circumstances whatever, or in any transaction relating to this insurance. "And it is hereby mutually understood and agreed by and between this company and the assured that this policy is made and accepted in reference to the foregoing terms and conditions, and to the classes of hazards and memoranda printed on the back of this policy. which are hereby declared to be a part of this contract, and are to be used and resorted to in order to determine the rights and obligations of the parties hereto, in all cases not herein otherwise specially provided for in writing." Other facts appear in the opinion. Defendant's counsel moved for a nonsuit on the ground of breach of warranty, and that plaintiff had not an insurable interest. The motion was denied, and defendant's counsel excepted. Judgment was entered on a verdict for the plaintiff, and was affirmed by the Supreme Court. B. C. Chetwood, for appellant. J. A. Thompson, for respondent. FOLGER, J. The plaintiff cannot maintain this action, unless he had an insurable interest in the buildings which were the subject of the risk taken by the defendants, and which were destroyed by fire. He seeks to found such an interest, upon the instrument in writing, executed by his wife after her marriage to him. Rohrbach v. The Germania Fire Insurance Company. Without entering minutely into a consideration of the effect of the marriage upon her pre-existing obligations and liabilities to him, it is sufficient to say that the instrument executed by her was based upon a consideration adequate to uphold her express promise; that though made by a married woman it was in due form to affect her separate estate; and that though a transaction between a wife and her husband, yet equity would have upheld and enforced it in his favor against her, had she lived, and will enforce it against her estate now that she is dead. By it, he was an equitable creditor of her estate, at the time of the insurance; but he was no more than a general creditor. Though the instrument contains the phrase, "shall be a lien on my property," no specific lien was thereby created, and so far as that instrument had effect, no more than a general equitable lien, yet to be enforced and made specific by a judgment in an equitable action. The plaintiff stood thereby in no better plight, so far as having an insurable interest in the buildings, than would have stood a creditor of the deceased wife, who held a judgment only, rendered and docketed against her, which would have become a general lien upon her real property. He did not stand in so good plight, but for other facts now to be mentioned. She had died after giving the instrument, leaving personal and only this real estate; a person other than the plaintiff had taken out letters of administration thereon; the personal estate was by much insufficient to pay the debts against her; and this real estate, including the insured buildings, would in the due course of administration, for a space of at least three years from the granting of letters of administration, be liable to sale for the purpose of meeting her liabilities, and it was the only fund to which the plaintiff could look for payment; the plaintiff was in the possession of the buildings, occupying them at the time of the fire. Judgment creditors, if any, would have had a prefer ence in payment from the personal estate (4 R. S. 87, § 27, subs. 3, 4), and, of course, the lien acquired by the docketing of their judgments could not be disturbed by the application of the administrator for leave to sell the real estate, for the payment of debts, and the obtaining of per mission to do so. But yet, the plaintiff had a right to compel an accounting by the administrator (2 R. S. 92, § 52), and a sale of the real estate (id. 108, § 48) for the payment of his and other debts. Thus, the real estate was to a degree subject to the payment thereof, and was in fact, from the slender amount of the personal property, substantially all that he could look to for payment. His position was not as good in some respects as that of a judgment creditor, but it was not unlike it; both had a right to have the real estate sold for the payment of their debts; for a certain space of time it could not escape the exercise of that Rohrbach v. The Germania Fire Insurance Company. right; and it cannot be said that the interest of a judgment creditor in the real estate, as an interest in property, was greater or nearer than that of the plaintiff. It was more manageable, but not more direct in the end. The general definitions of the phrase "insurable interest," as given in the text-books, are quite vague and not always concordant. See 1 Arnould on Mar. Ins. 229; Runyon on Life Ass. 16; Hughes on Ins. 30; 1 Marshall on Ins. 115; 1 Phillips on Ins. 2; id. 107; Sherman on Ins. 93; Parsons on Merc. Law, 507; Parsons on Cont. 438; Angell on Ins., § 56; Flanders on Fire Ins. 342; May on Ins., § 76. The last cited author says, that an insurable interest sometimes exists, where there is not any present property, any jus in re, or jus ad rem, and such a connection must be established between the subject-matter insured, and the party in whose behalf the insurance has been effected, as may be sufficient for deducing the existence of a loss to him, from the occurrence of an injury to it; and that the tendency of modern decisions is to admit to the protection of the contract, whatever act, event or property, bears such relation to the person seeking insurance, as that it can be said, with a reasonable degree of probability, to have a bearing upon his prospective pecuniary condition. While on the other hand, the statement is, that the interest must be founded on some legal or equi table title; and if it be inconsistent with the only title which the law can recognize, it will not be deemed an insurable interest. Marshall on Ins., supra. But the result of a comparison of the text writers above cited is, that there need not be a legal or equitable title to the property insured. If there be a right in or against the property, which some court will enforce upon the property, a right so closely connected with it, and so much dependent for value upon the continued existence of it alone, as that a loss of the property will cause pecuniary damage to the holder of the right against it, he has an insurable interest. Thus a mortgagee of real estate, though he hold also the bond of the mortgagor, has an insurable interest in the buildings; while a judgment creditor of the same mortgagor, his judgment being a lien upon the same real estate and the same buildings, is said not to have an insurable interest in them. The interest of the first is said to be specific, the interest of the latter general. As a general rule, the distinction may be sound. But I think it would be difficult to show an appreciable practical difference in the pecuniary result to the two. If the mortgagor and judgment debtor should die leaving no personal property, and no real estate save that mortgaged, if principally valuable for the buildings upon it, and they should be burned, each must then look to the real estate, |