Goslee v. Tearney. GOSLEE V. TEARNEY ET AL. 1. Tax Deed: UNOCCUPIED LANDS: POSSESSION. Where lands remain unoccupied for five years after the execution of a tax deed thereto, or are unoccupied at the expiration of that time, the possession is constructively in the holder of the tax title. 27 Appeal from Jasper District Court. FRIDAY, DECEMBER 5. ACTION for partition. The land was owned originally by one George Parsons, who died intestate. The plaintiff avers that he owns 2 of the land, and that each of the defendants owns except Thos. Tearney, who owns 7. The defendant Crabtree denies that the plaintiff owns any portion of the land, and avers that he, Crabtree, owns the whole. The court found that the defendant Thos. Tearney owned of the land, and that the other defendants and the plaintiff owned each, and rendered judgment accordingly. The defendant Crabtree appeals. Smith & Wilson and Barcroft, Given & McCaughan, for appellant. S. N. Lindley and S. C. Cook, for appellee. 1. TAX deed: unoccupied ADAMS, J.-The defendant Crabtree claims to have a tax title to the land. The land appears to have been sold at tax sale in November, 1867, to one Callanan, who acquired a tax deed and conveyed to Crabtree. The regularity of the sale is not questioned, but the plaintiff insists that, five years having elapsed from the time of completed sale, Crabtree is barred from asserting any rights in the premises. lands. possessiou. Neither Crabtree nor Callanan, under whom he claims title, instituted any action to recover possession, and neither of them took possession during the five years. It does not follow, however, that Crabtree is necessarily barred. If the land was unoccupied during the five years, or even at the expiration of the Goslee v. Tearney. five years, the holder of the tax title is not barred. The holder of the tax title has constructive possession of the land, if it is unoccupied, and such possession obviates the necessity of taking actual possession, or of bringing an action to recover possession. Moingona Coal Co. v. Blair, 51 Iowa, 447. It is incumbent, therefore, upon the plaintiff, who sets up the bar, to show not only that five years elapsed from the time of completed sale before Crabtree or Callanan took possession or brought an action to recover possession, but that one or more of the original owners were in possession at the time the five years expired. As to what the fact was the evidence leaves us in some doubt. The five years expired in November, 1875. As against the holder of the tax title the five years began to run from the time when he was entitled to a deed, which was in November, 1870. Hintrager v. Hennessey, 46 Iowa, 600. As to whether any one had actual possession in November, 1875, the evidence is very meager and unsatisfactory. The land appears to have been grubby prairie with some small timber on it. Timber to some extent was obtained from the land after the tax sale by the original owners. One of the heirs in his testimony says: "My brothers took timber off the land up to three years ago this spring." By this he meant up to the spring of 1876. But when they commenced taking timber he does not say. A fact so material should not have been left to conjecture or mere inference. But, aside from this difficulty, there is no evidence as to how much timber they took, or how often they took any. It appears to us, therefore, that we should not be justified in saying that one or more of the original owners were in possession at the expiration of the five years. If not, then the holder of the tax title would not be barred by the lapse of the five years. We think that the judgment of the court below must be REVERSED. Dennison v. The Phoenix Insurance Co. DENNISON V. THE PHOENIX INSURANCE CO. 1. Insurance: CONSTRUCTION OF POLICY: UNOCCUPIED BUILDING. Where a policy of insurance against fire provided that in case the building became vacant or unoccupied, and so remained without notice to, and consent of, the company, and the building was destroyed by fire after having remained unoccupied for seventeen days without notice to the company, it was held that there could be no recovery upon the policy. Appeal from Woodbury Circuit Court. FRIDAY, DECEMBER 5. ACTION upon a fire insurance policy. At the time the insurance was effected the building insured was occupied by a tenant of the plaintiff. When it was burned it was not occupied by any one, and had been vacant for some seventeen days. The property was situated in Sioux City, and had been used as a boarding house and hotel. The plaintiff resided some fourteen miles from Sioux City. There was a trial by jury and a verdict and judgment for the plaintiff. Defendant appeals. E. E. Lewis and M. B. Davis, for appellant. Joy & Wright, for appellee. ROTHROCK, J. The policy contains the following clause or stipulation: policy con "If the above mentioned premises shall be occupied or used so as to increase the risk, or become vacant or unoccu1. INSURANCE: pied, and so remain, without notice to, and consent strued: unoe- of, this company in writing, or the risk be increased by the erection of neighboring buildings, or by any means whatever within the control of the assured, without the consent of this company indorsed hereon * then, and in every such case, this policy is void." cupied building. * The court instructed the jury to the effect that it was not every vacation of the building which would render the policy 52 457 78 149 52 457 87 455 52 457 90 714 5% 457 106 568 52 457 131 183 Dennison v. The Phoenix Insurance Co. void, but that to avoid the policy the building must have remained vacant for such an unreasonable length of time as to materially increase the risk, and that what would be an unreasonable length of time was a question for the jury. The court also, upon its own motion, submitted to the jury special interrogatories, which, with the answers thereto, are as follows: "1. Was the house vacant or unoccupied at the time of fire without notice to the defendant? "Ans. Yes. How long had the house been vacant or unoccupied at time of fire? "Ans. About seventeen days. "3. Was the risk of fire increased by reason of the house being vacant or unoccupied? "Ans. No. "4. Was the house, under the circumstances, vacant or unoccupied for an unreasonable length of time? "Ans. No." It is urged by the plaintiff that the defendant did not take the proper exceptions to the instructions of the court, and that the abstract does not purport to contain all the evidence. This may be conceded, and yet the defendant asked the court to instruct the jury to the effect that if they found from the evidence that the premises were vacant and unoccupied at the time of the fire, without notice to the defendant, the plaintiff could not recover. These instructions were refused, and proper exceptions were taken. Although we may not have all the evidence in the record before us, the appellant insists that it contains all upon the question as to the vacation of the building. There certainly was evidence tending to show, and the jury found, that the tenant of the plaintiff moved out of the building seventeen days before the fire, and it remained tenantless and unoccupied until it was destroyed. We think the instructions asked by defendant should have been given, and that the cause was submitted to the jury upon a wrong construction of the policy. Counsel for appellee ingeniously argue the case upon the theory that the clause above Dennison v. The Phonix Insurance Co. quoted, properly construed, means if the premises became vacant and so remained, by some means not within the control of the insured, then the policy is not avoided by such vacation, and it is said the vacation of the building occurred without plaintiff's knowledge, and when he had reason to expect that the tenant would remain, his lease not having expired. We think the policy will not bear the construction contended for, and it will be seen such was not the theory of the court below. A fair and proper construction of the policy is that if the premises become vacant or unoccupied, and so remain, without notice to, and consent of the company, the policy shall be void. The increase of risk by any means within the control of the assured has no reference to the vacation of the building. That condition of things is specially named in the preceding clause. The parties have made this contract, and by it they must be bound. Courts can neither add to it, nor take from it. By its terms the defendant insured for the plaintiff an occupied building, and stipulated that if it should become unoccupied, and so remain without notice, the contract of insurance was at an end. It is not a question as to how long this state of 'things may exist without the knowledge of the assured. He is bound by the terms of his policy to see to it that his house does not become vacant, or give notice, etc. Neither is it a proper inquiry as to whether the risk is increased by reason of the building being unoccupied. The parties have settled that question by their contract. The question, as to whether the building was unoccupied for a reasonable or unreasonable length of time is wholly immaterial. The time is only material in determining whether the building is, in fact, vacant or unoccupied within the meaning of the contract. The only material consideration is, was this building vacant and unoccupied, and did it so remain until destroyed by fire? Of course the terms of the contract must receive a reasonable construction. The parties did not intend that one tenant should not move out and another move in. Nor did they intend that the house should be deemed vacant if the occupant should close it and go off on a visit, and not occupy it for a |