Which instruction the court gave, but with this modification: That if the insurers or their lawful agent knew of said vacation, and did not then avoid it, but treated it as a still existing policy, by delivering the same, and receiving the premium for the whole unexpired term, it was a waiver of the right to avoid it for that cause, and is no bar to a recovery in this action. 3d. That if the jury believe from the evidence, that after the risk was assumed by the defendants, the title to the property insured was transferred or changed without the permission of the defendants written on said policy, then said policy was thereby avoided, and no recovery thereon can be had in this suit. Which instruction the court gave, but Iwith this modification: That if the change be a mere succession of the widow and heirs of the assured, who resided in the house insured at the time of his death, this was not such a change or transfer of title as avoided the policy. 4th. That if the jury believe from the evidence that the plaintiff failed, for more than thirty days after the loss occurred, to render the defendants a particular account thereof, with an affidavit stating time, circumstances, and cause of fire, the 100 whole value and ownership of the property assured, amount, the amount of loss or damage, &c., then she failed to comply with the requirements of said policy, and cannot recover in this action. Which instruction the court gave, but with this modification: 101 or any forfeiture which at the time of *such undertaking or agreement may have occurred thereunder. Which instruction the court refused to give. 7th. That if the jury believe from the evidence that after the death of the intestate, Alexandria Kinnier-a suit having been regularly instituted by his creditors for the purpose of subjecting the premises insured to the payment of his debts, and the court in which said cause was instituted having, on the 15th day of June 1870, ordered said premises to be sold by its commissioner. and said commissioner having, on the 8th of July 1870, made such sale-those facts effected such a change in the title to the property insured under the provisions of the policy sued on as rendered the same void, and the defendants cannot be held responsible for any loss which thereafter occurred. Which instruction the court refused to give. The plaintiff by her counsel then moved the court to instruct the jury as follows: 1st. That if they believed from the evidence, that at the time of issuing the policy in the declaration mentioned, the witness, T. H. Ivey, had been authorized by the defendant to receive and accept proposals for risks subject to their approval and ratification, to issue and deliver policies and renew the same, and receive the premiums therefor, and had been supplied with blanks signed by the president, to be filled up and countersigned by him, this constituted him the general agent of That if the jury believe from the evidence the company; and the company is bound by that the insurers, from any reliable source, all his acts as such within the scope of his knew that the building insured had been authority, so long as it existed, notwithstanddestroyed by fire, and by any act or declara-ing any private instructions which he may tion of theirs, or their lawful agent, prevented the assured from preparing the schedule with the affidavit thereto, required by the policy, within thirty days next succeeding the burning of the house, whether verbally or in writing, it was a waiver of the performance within the thirty days of that condition, and the omission to do so is no bar to this action, provided it was done within reasonable time thereafter. 5th. That the plaintiff cannot recover in this suit unless she proves that at the time of the loss by fire the property consumed was vested in or belonged, legally or equitably, to her as administratrix of Alexander Kinnier, deceased. Which instructions the court refused to give. 6th. That if the jury believe from the evidence, that there was, on the part of the insured, or those claiming under him, such a violation of the conditions and requirements of the policy in controversy, as to work a forfeiture thereof, they must find for the defendant, notwithstanding that they believe that T. H. Ivey, the agent of the defendant at Lynchburg, did undertake and agree on behalf of the defendant, by an oral contract, to waive in favor of the insured, or those claiming under him, the obligation of such condition and requirements, have received limiting that authority, of 2d. That the company is bound by 102 all the acts and declarations of its agent, which were within the general scope of his authority, and made while in ing that in such acts and declarations he the execution of his agency, notwithstandmay have departed from his instructions received from the company, provided that the assured had no knowledge of such instructions. Which the court gave. 3d. That the conditions of the policy, that the policy should be avoided by the removal of the owner or occupant for a period of more than twenty days, without immediate notice and written consent, was inserted by the company itself for its own protection and benefit; and that it was competent for the company or its agent to waive the said condition, either orally or in writing, notwithstanding the expression used as to its written consent. Which instruction the court gave. After the foregoing instructions, as asked for by both defendant and plaintiff, and rejected, modified, or given as above stated, the defendant by counsel moved the court to give the jury, as a modification of the de fendants' second instruction, as modified by the court. the following instruction: But if the jury believe from the evidence, that the defendants' agent delivered said policy on the statement of the plaintiff's agent, that the insured premises were in the occupation of a colored man, but that in fact the house insured was not then or afterwards thus occupied, but was then and remained vacant, then such delivery of the policy and collection of the premium was no waiver of the said condition in said policy, and the words "premises hereby insured," used in said policy, refer to the building thereby insured, and the occupancy of a 103 colored man of an outhouse *fully detached was no such occupation of the "premises insured" as said policy required. The court refused to give said instruction, on the ground that at the time of the delivery of said policy and the receipt of the premium by the agent of the company, there is not a particle of proof before the jury that any statement of such kind was made by the plaintiff's agent; and in lieu of said instruction the court gave the following: That if the jury believe from the evidence, that after the risk of the policy sued on was assumed by the defendants, the premises thereby insured became vacant by the removal of the owner or occupant for a period of more than twenty days without notice to the company, and their consent thereto in writing, then said policy was thereby avoided, and no recovery can be had thereon in this suit, unless they believe from the evidence that the defendants or their lawful agent knew of said vacation and did not avoid it, but treated it as a still existing policy, by receiving the premium for the whole term, and delivering the policy, which would be a waiver of the right to avoid the policy, and is no bar to a recovery in this action. The court further instructed the jury that the words in the policy, "the premises hereby insured." are to be interpreted as having reference exclusively to the dwelling house insured; and although the jury should believe from the evidence that an outhouse was occupied by a colored man at the time mentioned, it was not such an occupation of the house insured as contemplated in the policy. To all which opinions and judgments of the court, refusing to give said first, second, third and fourth instructions asked by the defendant, except with the modifications thereof by the court, the said modifica104 tions *as made, and the refusal to give the fifth, sixth, seventh and eighth in structions moved by the defendant's counsel, and giving the instructions in lieu of the eighth, and also giving the first, second. and third instructions moved by plaintiff's counsel, the defendant by counsel except and pray their exceptions to be signed, sealed and unrolled according to law; which is accordingly done. The instructions set out in bill "No. 1," and the fifth in the series of "No. 2" may be considered together. They propounded as law The other instructions asked for by the defendant relate to the conditions in the policy hereinbefore recited. Upon examination it will be seen that these conditions and stipulations are wholly for the benefit of the insurer, stringent in their character, some of them more or less ambiguous and equivocal in their terms, and the breach of each is visited with a forfeiture. They are annexed, however, to the policy, constitute a part of the contract, and, however rigorous, are binding on the parties, unless in some way dispensed with. They should be fairly construed according to the rules applicable to such instruments. The maxim, that "the words of an instrument shall be taken most strongly against the party employing them," is peculiarly of insurance, and especially of such condiappropriate in the construction of a policy tions as we are now considering. The 105 instrument is *wholly the work of the underwriter, and is usually filled with a multitude and variety of stipulations seldom read by the assured when he accepts the policy, and if read, rarely if ever fully understood. Abounding in forfeitures and in provisions, generally harsh and difficult of performance, it should be strictly construed against the insurer, and liberally in favor of the insured. A modern writer on insurance thus states the rule: "No rule, in the interpretation of a policy, is more fully established, or more imperative and controlling than, that which declares that, in all cases, it must be liberally construed in favor of the insured, so as not to defeat without a plain necessity his claim to indemnity, which, in making the insurance, it was his object to secure. May on Insurance 182. Bearing in mind these salutary rules, let us proceed with the examination of the instructions embodied in the second bill of exceptions. The first in the series evidently points to the condition or stipulation before noted as five. "Any change, within control of the assured, material to the risk, shall avoid this policy." The court refused to give this instruction as asked, and gave it with a construction of the word "change," limiting the meaning to a change which affected the condition of the property wrought by the agency of the assured, and excluding the idea that it embraced the mere vacation of the building by the assured or the occupants. I think this explanation was proper to prevent the jury from being misled. The word "change," is certainly a very comprehensive term. In the sentence in which it occurs, considered without reference to other clauses, it might include any change in the title, possession, or condition of the property. But we must look to the whole instrument, 106 and so construe it as to *give effect if possible to each and every part of it, and ascertain what limitation, if any, should be placed upon the meaning of this very comprehensive term "change." Was it used in reference to the title? Plainly not, for a change of title is clearly and distinctly provided against by conditions two and three. Did it refer to change of possession from the assured to some other person? I think not, for condition four implies authorized Occupancy other than by the owner. Did it refer to the vacating of the premises? It could not be, for that change is expressly provided against by condition four. It must therefore, as it seems to me, be taken to refer solely to some such change in the condition of the building as is declared in the modification made by the court. At all events, it could not have been intended to include the vacating of the building; and it is apparent that the sole object of the modification was to guard the jury against a construction which would include the vacating of the building; and although the construction given by the court may possibly be somewhat too narrow, yet, under the evidence, it could not have misled the jury, and was not to the prejudice of the defendant. the family had dispersed, and all the circumstances go to show that it was not intended that the condition against removal should be enforced. If such had not been the intention and understanding of the parties, it is safe to conclude that the premium would not have been paid, nor the policy delivered. Now this conduct of the company's agent, which the evidence strongly tended to prove a-his acts and declaration-amounted if proved, (and whether proved was a question left to the jury), to a dispensing with the performance of the condition by the assured, or a waiver of the forfeiture incurred by the breach of it, or they operated as an estoppel, precluding the company from 108 afterwards relying upon the breach as a bar to the claim of the assured for indemnity under the policy. Such waiver or estoppel, (for the terms "waiver" and "estoppel" may be indifferently used in application to the subject we are now considering), may take place either pending the negotiation for the policy, or after such negotiation has been completed, and during the currency of the policy, and either before or after forfeiture incurred. Such waiver may be made by a general agent, acting within the scope of his powers, needs no consideration to support it, and may be by parol, although the written consent of the insurer is required by the terms of the policy. Nor will the party insured be bound, nor ought he to be bound, by any instructions given by the insurer to his agent limiting the general powers possessed by the latter in relation to the subject of the agency, unless such instructions are made known to the assured. May on Insurance 611, 618, 622; Coursin v. The Penn Ins. Co., 46 Penn. St. R. 323; Peoria Ma I do not think there was any error in refusing the instruction as asked, and giving it as modified. R. 203; Heaton v. Manhattan Fire Insurance Co., 7 Rhode Isl. R. 502; Viele v. Germania Insurance Co., 26 Iowa R. 9. The second instruction is based on condition four, which vitiates the policy, if the insured building should be vacated by the removal of the owner, or occupant for more than twenty days without immediate notice and written consent. The instruction was given with modifications. As given, in sub-rine and Fire Insurance Co. v. Hall, 12 Mich. stance it declares as law that it was competent for the insurer or his lawful agent to waive condition four; and if at the time the agent of the company received the pre107 mium of insurance and delivered the policy, he had knowledge of the vacation of the property, and did not then avoid the policy, but treated it as valid and subsisting, such conduct of the agent was a waiver of the condition, and a breach of it could not be relied on by the defendant to defeat the plaintiff's recovery. As before stated, there was abundant evidence before the jury tending to show that Ivey (the company's agent) at the time he collected the premium and delivered the policy, had the knowledge on which the modified instruction was founded, and then represented to the plaintiff's agent (Gordon) that the policy was all right, and that the money assured would be paid if the house should be burned; and furthermore threatened to cancel the policy if the premium was not paid. Gordon must have relied upon these acts and declarations of Ivey, and was induced thereby to pay, and did pay the premium and accept the policy. There was evidence to show that both agents knew that the house had been left vacant, and would not be again occupied by Kinner's widow or by any of his family, for The case last cited (26 Iowa 9) seems to meet every objection as to matters of waiver and estoppel made by the plaintiff in error. It seems to have been elaborately argued by the counsel on both sides; and to have been thoroughly investigated and well considered by the supreme court of Iowa, in which the Hon. John F. Dillon, an eminent jurist, presided as chief justice The reporter, in a note appended, calls attention to the importance and somewhat leading character of the case, and the interesting nature of the questions discussed. au The following propositions, amongst 109 others, supported *by numerous thorities, some of them English, but mostly American, seem to be established by that case. 1. WAIVER OF CONDITIONS ESTOPPEL. A condition in a policy of fire insurance, that if the risk be increased by a change of occupation or other means within the control of the assured, without the written consent of the insurers, "the policy shall be void," being inserted for the benefit of the insurers, they may dispense with a compliance therewith, or waive a forfeiture of the policy incurred by a breach thereof, and thereby become estopped from setting up such condition as a breach in an action for a loss subsequently occurring. 2. WAIVER NEED NOT BE IN WRITING.-And such waiver of the forfeiture arising from the breach of the condition need not be in writing, but may be by parol, at least in a case where the policy is not attested by the corporate seal of the company, and is hence not a specialty. 3. WHAT WILL AMOUNT TO A WAIVER.-Any acts, declarations, or course of dealing by the insurers, with knowledge of the facts constituting a breach of a condition in the policy, recognizing and treating the policy as still in force, and leading the assured to regard himself as still protected thereby, will amount to a waiver of the forfeiture by reason of such breach, and estop the company from setting up the same as a defence when sued for a subsequent loss. struction, an alienation within the operation The fourth instruction refers to condition six, in regard to the preliminary proofs of evidence showed that such proofs were furloss to be furnished to the company. The nished, although not within the thirty days from the time of loss. Gordon, the agent of the administratrix, after repeated applications, finally succeeded in getting the requisite blank forms for the proofs, which he filled up an delivered to Ivey, and the latter 4. NEED NOT BE FOUNDED ON NEW CONSIDER- Says he sent them to the company. No comATION.-A waiver of conditions, or for-plaint was ever made by the company as to 110 feiture arising from a *breach thereof, need not be founded on any new consideration. 5. POWER OF AGENT TO WAIVE FORFEITURE.— A local agent of a foreign insurance company, clothed with authority to effect contracts of insurance, to fix rates of premium, to give consent to the increase of risks and change of occupation of buildings insured, to cancel policies on account of increase of risk, and exercise supervision over the property covered by policies issued at his agency, has power to dispense with conditions and waive forfeitures arising from a breach thereof in the absence of any limitation upon his authority known to the assured. 6. IMPLIED AND INCIDENTAL POWERS.-The foregoing powers are necessary incidents of the general authority of the agent to effect contracts of insurance, conduct the business at his agency, and do all things necessary and proper in the prosecution thereof. 7. EXTENT OF WAIVER.-A waiver of a forfeiture, resulting from a breach occasioned by a change in the occupancy of the building, increasing the risk, extends not only to breaches occasioned by the occupancy before such waiver, but to those resulting from a continuation of such occupancy. I see no error in the refusal to give the instruction as asked, and giving it in the modified form. The third instruction relates to condition two. The court gave it with a construction that the change interdicted by the condition was not intended to include devolution of title upon the heirs by the death of the assured. In this surely there was no error. By 111 the *change of title provided against in the condition must have been intended a voluntary disposition or alienation of the property. It could not have been intended to embrace all kinds of transfer of title, for, in condition three, change of title by "forclosure of mortgage, or levy of execution," is specially provided against. It is there declared that such a change shall be "deemed an alienation;" that is by fair con the regularity or sufficiency of the proofs, or as to the time within which they were furnished. Moreover, there was evidence tending to show that Gordon was prevented from sending the proofs within the thirty days, or at least that the furnishing them within the time was dispensed with by the company through their agent. The doctrine of waiver and estoppel, already *discussed, applies to this instruction also. Home Insurance Co. v. Cohen, 20_Gratt. 312; West Rockingham Mut. Fire Ins. Co. v. Sheets & Co., 26 Gratt. 854. 112 The court committed no error in refusing the instruction asked for, and in giving it as modified. of. The fifth instruction has been disposed The sixth and seventh were refused, and, as I think, properly. The object of the sixth seems to have been to declare at law, that a forfeiture incurred by a breach of any of the conditions of the policy could not be waived, except in writing, if at all, and that a parol waiver by the agent would be nugatory. This proposition has been already determined adversely to the plaintiff in error in disposing of the questions arising upon the other instructions, and need not be further noticed, except to add that the instruction would seem to be faulty for another reason, that it proposed to submit a question of law to the jury for their determination; to-wit: whether there had been such a violation of the conditions of the policy as to work a forfeiture. Whether the facts and circumstances which constitute a forfeiture are proved, is a question for the jury; whether when proved they constitute a forfeiture, is matter of law for the court. The seventh instruction asked for was based, as is supposed, on the third condition of the policy, imposing a forfeiture by reason of "a foreclosure of a mortgage." It is sufficient to say that there was no foreclosure of a mortgage in this case, and if a judicial sale under a creditor's bill could by liberal construction be brought within the operation of the condition, still such sale must have been so far perfected as to| 115 make it equivalent to the foreclosure of a mortgage. There was no such com By *Andrews, Ordway & Green v. The Auditor, &c. January Term, 1877, Richmond. agreement between the United States government and the owner of land, the government erects buildings on the land, intended to be and actually used by operatives employed by the government in dressing stone to be employed in the erection of public buildings at Washington; and under the agreement the government has the right to геmove the buildings-HELD: 113 pleted sale in this case. The land with The Auditor v. Andrews, Ordway & Green. the insured building upon it was, as shown by the record, ordered to be sold before the building was burned, but the sale was never completed. It was made and reported to the court, excepted to, and never confirmed. On the contrary, it was afterwards set aside and wholly vacated. The purchaser was never let into possession, and was never at any time entitled to such possession. By the express terms of the decree ordering the sale, the commissioner, who was appointed to make it, was directed to announce publicly, at the time of sale, "that no sale under the decree should be valid until ratified by the court." This direction would seem to have been unnecessary, but the commissioner followed it, as shown by his report. 2 Dan. Ch. Prac. 1274, 1281. The instruct. called the eighth, in the bill of exceptions, was asked for as an addition to modified instruction No. 2. It may be doubtful whether this instruction might not have been properly given, but at all events the refusal to give it did not and could not prejudice the defendant, because it was substantially covered by the instruction which was substituted for it. The propriety of the instructions given on the motion of the plaintiff's counsel has been settled in considering and determining the questions arising upon the defendant's instructions, and need not be further noticed. See Story on Agency, §§ 77, 106, 126, 134. It only remains to consider the third bill of exceptions taken by the plaintiff in error to the judgment of the court overruling the motion for a new trial, made upon the ground that the verdict of the jury was contrary to the law and the evidence. The bill sets out the facts certified as proved on the trial, and those facts seem sufficient to war rant the verdict. As before stated, there 114 was considerable conflict in the *tes timony of the two main witnesses touching material facts. It was the peculiar province of the jury to deduce the facts involved in this conflict. They did so, and the judge who presided at the trial concurred with them in their finding. The law was applied by the jury to the facts under the direction of the court, in which direction, as has already been shown, there was no error. The rules which govern applications for new trials, based upon the ground that the verdict of the jury is against law and the evidence, are well settled by numerous decisions of this court. They are well stated by JUDGE CHRISTIAN in a late case. Blosser v. Harshberger, 21 Gratt. 214. 1. The buildings are personal property. 2. 3. Constitutional Law-Taxing Government Property.-The buildings being the property of the United States, the state cannot tax them either as personal property or as par cel of the land on which they are built. Taxation-Exemptions.-When buildings put up on the land of another are exempted by law from taxation, they should not be valued with the land, and the owner of it is not to be charged with their value as part of his land subject to taxation. But where such buildings are not exempt from taxation, they should be valued and the tax charged to the owner of the land. One of these cases was an appeal by the auditor of public accounts of the commonwealth of Virginia from a judgment of the circuit court of Chesterfield county, reversing a judgment of the county court, upon the application of Andrews, Ordway & Green, to have repaid to them taxes which had been assessed upon the buildings located upon lands owned by them, which buildings were the property of the United States government, and to have the same exempted from taxation. The other case was an application to the court of appeals for a writ of man116 damus to the *auditor to require him to repay the said taxes. The case is stated by JUDGE CHRISTIAN in his opinion. F. W. Christian, for the petitioners. The Attorney General, for the auditor. CHRISTIAN, J. This case is before us upon a writ of error to a judgment of the circuit court of Chesterfield county. The controversy arose out of a motion made by Andrews, Ordway & Green before the county court of Chesterfield for redress against an alleged erroneous assessment of taxes. The county court held the assessment against them lawful; but on appeal to the circuit court the judgment of the county court was reversed, and the appellants were relieved from the erroneous assessment complained of; and it was to this judgment, reversing the judg Upon the whole, I am of opinion that Erecting Buildings on Another's Landthere is no error in the judgment of the Effect of Agreement.-See Shelton v. Ficklin, 32 corporation court for the city of Lynch-Gratt. 727-743 and note, affirming the decision of the burg, and that the same should be affirmed with damages. principal case that where a building is erected by one man upon the land of another, by his permission, with the right to remove it retained, it does not become a part of the realty but continues to be a personal chattel and the property of the person who erected it. |