#### N. F. HOUCK and M. V. HOUCK v. THE AMERICAN EAGLE FIRE INSURANCE COMPANY.

(Filed 12 February, 1930.)

1. Insurance D a — Life estate in house and lot is insurable interest.

The life estates of tenants in common in a lot upon which a house is situated is an insurable interest in the house, and a policy of fire insurance issued thereon is valid and enforceable.

2. Insurance N d — Life tenants may recover full amount of insurance as trustees of remaindermen.

Where a policy of fire insurance is issued to tenants in common for life for the benefit of themselves and the remaindermen, the tenants in common for life may recover the full value of the policy, after loss, as trustees of the remaindermen.

3. Insurance K a — Knoweldge of agent that insured was not owner in fee of property held imputed to insurer in this case.

Where the agent of the insurer, with full knowledge that the insured were tenants in common for life in the property upon which application for insurance is made, and after the request of the insured that a policy be issued protecting all interests in the property, issues a policy for the insurer providing that the policy should be void if the insured was not the sole and unconditional owner: *Held,,*the knowledge of the agent will be imputed to the company issuing the policy and accepting the full premium, and it will be held to have waived the provisions in the policy as to ownership.

4. Insurance G a — Where insurer consents to transfer It is estopped to deny the validity thereof.

Where an insurance company consents to the transfer of the policy by the insured to another who is a tenant in common for life with him, the company is estopped to deny the validity of the transfer.

Appeal by plaintiffs from *McElroy, J.,*at July Term, 1929, of Ashe.

Reversed.

This is an action on a policy of fire insurance, issued by the defendant company to the plaintiff, N. F. Houck, on 1 July, 1925, insuring the said N. E. Houck against loss or damage by fire to a dwelling-house, in a sum not exceeding $1,500. By its terms the policy continued in force for three years from the date of its issuance, and expired on 1 July, 1928. The premium for said policy was paid by the said N. F. Houck. At his request, the policy was transferred from him to his wife, the plaintiff, M. Y. Houck, on 26 June, 1926, by an endorsement made thereon by the agent of the defendant company, who issued the policy in its behalf. The house covered by the policy was destroyed by fire on 5 October, 1927. After the fire, the house was appraised at $1,598.04; by the terms of the policy the defendant is liable, if liable at all, for the sum of $1,198.53.

*304Defendant company denied liability under the policy on the ground that neither N. E. Houck nor M. Y. Houck was the owner in fee simple of the land on which the house was located at the date of the issuance of the policy, or at the date of its transfer from N. E. Houck to M. Y. Houck, and on the further ground that neither of them at said dates was the sole and unconditional owner of said house. Defendant relied upon provisions in the policy to the effect that same should be void, if the insured was not the owner in. fee simple of said land, or was not the sole and unconditional owner of said house.

Plaintiffs admitted that N. E. Houck was not the owner in fee simple of said land at the date of the issuance of the policy and that he was not the sole and unconditional owner of said house, at said date; they further admitted that M. Y. Houck was not such owner of said land, and was not such owner of said house, at the date of the transfer of the policy to her. They alleged and offered evidence tending to show that at the date of the issuance of the policy the plaintiffs, N. E. Houck and M. Y. Houck, his wife, were the owners as tenants in common of an estate in said land for the life of N. E. Houck, and that the children of N. E. Houck, as heirs at law of their mother, his first wife, owned the said land in fee, subject to said life estate, and that the house covered by said policy was built on said land, after the death of his first wife, by the plaintiff, N. E. Houck, and his second wife, the plaintiff, M. Y. Houck.

Evidence offered by the plaintiffs tended to- show that at the time the policy was issued to N. E. Houck and at the time it was subsequently transferred from him to M. Y.,Houck, the said N. E. Houck informed the agent of the defendant company of the true conditions of the title to said land and house, and requested said agent to issue a policy which would protect all persons who were interested in said house, in the event the same should be damaged or destroyed by fire. With this information, and upon this request, the agent issued the policy, naming the plaintiff, N. E. Houck, as the insured therein, and subsequently endorsed the transfer on the policy, at the request of the said N. E. Houck. Plaintiffs contended that defendant having issued and transferred the policy with full knowledge of the true condition of the title to the land and house, waived the provisions of the policy on which it relies to defeat a recovery in this action.

Erom judgment dismissing the action as upon nonsuit, on motion of defendant, at the close of the evidence for the plaintiffs (O. S., 567) plaintiffs appealed to the Supreme Court.

*G. W. Higgins and, T. G. Bowie for plaintiffs.*

*Broolcs, Parka', Smith & Wharton for defendant.*

*305OoNNOR, J.

Tbe contention of tbe defendant tbat tbe evidence offered by tbe plaintiffs fails to sbow tbat plaintiffs, or either of them, bad an insurable interest in tbe bouse covered by tbe policy, cannot be sustained. Tbe evidence shows tbat plaintiffs owned an estate for tbe life of N. F. Houck in tbe land on which tbe bouse was located, and tbat they owned such estate as tenants in common. Tbe ownership by tbe plaintiffs of this estate gave them an insurable interest in tbe bouse. It has been held by this Court tbat a person owning only an equitable interest in property has an interest therein which is insurable against loss or damage by fire. *Gerringer v. Ins. Co.,*133 N. C., 407, 45 S. E., 773. In *Batts v. Sullivan,*182 N. C., 129, 108 S. E., 511, it is said: “It may be stated as a general proposition, sustained by all tbe authorities, tbat whenever a person will suffer a loss by the destruction of property, be has an insurable interest therein.” There was evidence tending to show tbat tbe policy was applied for and issued for tbe protection not only of tbe plaintiffs, as owners of a life estate in tbe bouse, but also for tbe protection of tbe remaindermen. Tbe law is tbat “when a tenant for life, intending to insure tbe property for tbe benefit of himself and tbe re-maindermen receives a. policy for tbe full value of tbe fee, by mistake of tbe insurer, who accepts tbe full premium, tbe insured may recover tbe full value of tbe policy, after loss, as trustee for tbe remaindermen.” 14 R. C. L., 1307.

There was evidence tending to show tbat at tbe date of tbe issuance of tbe policy, defendant’s agent was informed by tbe plaintiff, N. F. Houck, tbat be and M. Y. Houck owned only an estate in tbe land for bis life, and tbat bis children owned tbe remainder in fee. This knowledge is imputed to tbe defendant. Thisi evidence was sufficient to show a waiver by defendant of tbe provisions of tbe policy on which it relies. *Midkiff v. Ins. Co.,*197 N. C., 139, 147 S. E., 812; *Aldridge v. Ins. Co.,*194 N. C., 683, 140 S. E., 706; *Bullard v. Ins. Co.,*189 N. C., 34, 126 S. E., 179; *Ins. Co. v. Lumber Co.,*186 N. C., 269, 119 S. E., 362.

Tbe defendant is not released from liability on tbe policy by reason of its transfer from N. F. Houck to M. Y. Houck. Both N. F. Houck and M. Y. Houck are plaintiffs in this action. Tbe defendant consented to tbe transfer and is therefore estopped to contend tbat it is invalid. *Blackburn v. Ins. Co.,*116 N. C., 821, 21 S. E., 922.

There is error in tbe judgment dismissing tbe action. Tbe judgment is

Reversed.