Breedlove v. Norwich Union Fire Insurance Society

Citations

• 124 Cal. 164
• 56 P. 770
• 1899 Cal. LEXIS 963

Syllabus

<p>Fire Insurance—Title of Property—Unrecorded Deed—Foreclosure of Mortgage —Parties.—A policy of fire insurance providing that it should he void if the interest of the insured be other than unconditional and sole ownership, is violated, unless the wa, runty of such ownership is waived, where the insurer failed to record a deed from a mortgagor, and the title was divested by foreclosure and sale of the mortgaged prem'ses, though the insurer was not made a party to the foreclosure suit. The sale under the decree as conclusively divests the title of the insurer under the unrecorded deed as though he were a party litigant in the foreclosure suit.</p> <p>Id.—Warranty of Ownership.—A warranty of unconditional and sole ownership is established by the use of the pronoun “her” in the statement of the plaintiff’s interest in the premises insured, in which the amount of the insurance is stated to he “on her two-story metal roof building.”</p> <p>Id.—Waiver of Warranty —Findings—Sufficiency of Evidence.— Where the court finds that the defendant waived the warranty expressed in the Contract by issuing the policy to the plaintiff with full knowledge of the condition of the plaintiff’s title, the warranty could be thereby waived; and if there is some evidence tending to support such finding, it cannot be disturbed upon appeal, though the preponderance of the evidence against the waiver may he such that the trial judge would have b en warranted in discrediting the testimony in favor the. eof, an.l finding against a waiver.</p> <p>Id.—Pleading—Issue as to Waiver—Affirmative Defense—New Matter.—It was incumbent upon the plaintiff to aver a performance of all conditions and promissory warranties upon her part to be kept and performed; but it was not necessary to plead the truth of an affirmative warranty of title. Where the answer pleaded the warranty of the title, and the falsity of the evidence, in discharge of the liability, such affirmative defense is new matter which is deemed t