Joseph Story

“ In examining the case presented by the present writ of error, we shall endeavour to strip it of the artificial and complicated form in which it comes before the court: and instead of wandering through the maze of special pleadings and exceptions with which the merits of the case are incumbered, and under which indeed they seem almost buried ”

“ If it would, then the misrepresentation or concealment is fatal to the policy. Now, at the trial of the present case, the counsel for the insurance company, in their second bill of exceptions, prayed the court to instruct the jury, that if they 'find from the evidence that a full disclosure of the actual title of the insured in the premises, as it existed at the time, was material to, and would have considerably increased the estimate and value of the risk and premium ”

“ Assuming that Howard is personally liable for that debt; still, unless the creditors have not merely a lien on the premises, but a lien on the policy for it, Howard has no interest which renders him incompetent in this suit. Now, we know of no principle of law or of equity by which a mortgagee has a right to claim the benefit of a policy underwritten for the mortgagor on the mortgaged property, in case of a loss by fire. It is not attached, or an incident to his mortgage. It is strictly a personal contract for the benefit of the mortgagor ”

“ The language of fire policies, too, abundantly justifies this conclusion upon the common principles of interpretation. The underwriters agree to pay 'all loss or damage,' which the assured may sustain by fire
The next question which arises, is upon the supposed misdescription of the premises in the proposal for insurance, and the effect of that misdescription. ”

“ In the ordinary course of things upon a trial before the jury, this would be a mixed question of fact and law: of law, where all the facts and circumstances were admitted or established; of fact, where these circumstances were open for the ascertainment of the jury. In the present case, the question is directly made upon a full display of all the facts and circumstances in the special pleadings. We are of opinion, that under all these facts and circumstances, the non-production of the proper certificate at an earlier period is fully accounted for ”

“ Lawrence, in November 1822, entered into a contract with Poindexter, by which the latter became interested in a moiety of the premises, and became liable to the payment of a moiety of the debts due by Howard and Lawrence to the Bank of Virginia, and the Farmers Bank, at the Frederickburg branches, for which Howard and Lawrence had executed the deed of trust to Roberts ”