#### Kobin, Respondent, vs. Saint Paul Fire & Marine Insurance Company, Appellant.

*September 20*

October *8, 1912.*

*Insurance against fire: Proof of title to realty: Possession: False swearing, by insured: Findings of fact: Evidence: Burden of proof.*

1. In an action to recover for a loss under a policy insuring a dwelling bouse, proof of possession of tbe property at and prior to tbe time when tbe policy was issued was sufficient *■prima facie*evidence of plaintiff’s title to tbe real estate, especially where tbe policy described tbe bouse as bis and was issued upon a written application stating that tbe building was upon land owned by bim.

2. Altbougb plaintiff contradicted bimself several times and gave some evidence strongly indicating that be wilfully swore falsely, yet upon tbe whole record, it appearing among other things that be did not understand tbe English language well and that be was considerably confused in answering questions on cross-examination, it is *held*tfiat findings by tbe jury to tbe effect that neither in his proofs- of loss nor in bis examination before a justice under tbe policy bad be knowingly and intentionally sworn falsely as to matters relating to tbe insurance, should not be disturbed.

3. An instruction to the jury in such case that tbe burden of proof both as to falsity of statement and as to wilfully false swearing was upon tbe defendant, was correct* Tbe burden of proof did not shift.

Appeal from a judgment of tbe circuit court for Marathon county: A. H. Reid, Circuit Judge.

*Affirmed.*

This action was brought to recover damages for a loss-under a Wisconsin standard fire insurance policy covering a dwelling house and furniture and pther property. A fire occurred June 13, 1910, destroying the dwelling house and part of the household furniture. The answer set up that the loss resulted solely by reason of the wrongful act and design of' the plaintiff by setting fire with intent rto destroy the property and defraud the defendant, and also fraud in preparing *592and presenting statement of loss alleged to bave been sustained, and by falsely swearing respecting amount of loss. Tbe court denied a motion for directed verdict and tbe jury returned tbe following:

*“(1)*Wbat direct loss or damage did plaintiff suffer by tbe fire in question to tbe personal property listed in bis proofs of loss, 'Exhibit 2’ ? *A.*$600.

“(2) Did plaintiff, in bis proofs of loss, 'Exhibit 2/ knowingly and intentionally swear falsely touching any matter relating to this insurance or subject thereof? *A.*No.

"(3) Did plaintiff, in bis examination before Justice Nightingale, under tbe policy, knowingly and intentionally swear falsely touching any matter relating to this insurance or tbe subject thereof ? *A.*No. ■»

"(4) If you answer either question number 2 or question number 3 'Yes,’ then was such false swearing done with intent to mislead the defendant and induce it to act to its injury? A.-.”

Tbe defendant made tbe usual motions after verdict, which were respectively denied. Judgment was entered for tbe plaintiff, from which this appeal was taken.

*Daniel H. Grady,*for tbe appellant.

Eor tbe respondent there was a brief by *JoJm F. Hooper,*attorney, and *Kreutzer, Bird, Bosenberry & OJconesJci,*counsel, and oral argument by *Claire B. Bird.*

KekwiN, J.

Tbe first error assigned is that there was no proof of plaintiff’s title in fee simple in tbe real estate upon which tbe building destroyed by fire stood. It is claimed on tbe part of tbe appellant that tbe title could not be established by oral testimony, and that tbe best evidence of title to real property, when tbe same is in issue, consists in such muni-ments of title as deeds, mortgages, etc., and that unless tbe absence of such evidence is satisfactorily explained parol evidence will not be received to prove title. In tbe instant case the plaintiff proved possession of tbe property at and prior to tbe time tbe policy was issued. Besides, tbe policy issued *593upon plaintiff’s bouse described it as “bis two-story, sbingle roof, frame dwelling bouse” and was issued upon a written application representing tbat tbe building was upon land owned by tbe plaintiff.

Proof of possession is sufficient *prima facie*evidence of title to real estate, and tbe evidence-bere went beyond tbat and is ample to make a *prima facie*case of title in plaintiff. *Wausau B. Co. v.*Plumer, 35 Wis. 274, 281; *Loberg v. Amherst,*87 Wis. 634, 58 N. W. 1048; 4 Wigmore, Ev. § 2515.

Counsel for appellant attacks tbe answers to tbe second and third questions of tbe special verdict as not being supported by tbe evidence. It is time plaintiff in bis evidence contradicted bimself several times and gave some evidence wbicb would strongly indicate tbat be wilfully swore falsely. Put after a careful examination of all tbe evidence we are not prepared to say tbat tbe ansyvers of tbe jury to these questions should be disturbed. It appears from tbe record, and was so stated by tbe trial judge, tbat tbe plaintiff did not understand tbe English language well and apparently was considerably confused in answering questions under tbe very severe cross-examination by counsel for appellant. Tbe court below and tbe jury were in far better position to judge of tbe credibility of tbe evidence of plaintiff than we are. After a careful examination of tbe record tbe court is of opinion tbat tbe answers of the jury to tbe second and third questions of tbe special verdict should not be disturbed. *Meyer v. Home Ins. Co.*127 Wis. 293, 106 N. W. 1087; *Wunderlich v. Palatine Ins. Co.*115 Wis. 509, 92 N. W. 264.

It is insisted in tbe brief of counsel for appellant, and also was pressed in argument bere, tbat tbe court committed reversible error in its instructions upon tbe burden of proof wherein it instructed tbat tbe burden of proof on both tbe falsity of statement and wilfully false swearing was upon tbe defendant, and it was claimed, in view of tbe evidence produced, tbat tbe burden of proof was shifted. There was no *594error in tbe charge. The burden of proof did not shift. *Winn v.*Itzel, 125 Wis. 19, 103 N. W. 220.

There are some other detailed errors assigned, which we have examined but deem unnecessary to discuss. We find no prejudicial error in the record.

*By the Court.*— The judgment is affirmed.