Davis vs. The Pioneer Furniture Co. Ins. Co. v. McLaughlin, 53 Pa. St. 485; Girard F. & M. Ins. Co. v. Stephenson, 37 Pa. St. 293. For the respondent there was a brief by Wickham & Farr, and oral argument by James Wickham. They contended, inter alia, that the title of the insured was such that he could not have recovered in case of loss. Gettelman v. Commercial U. Ass. Co. 97 Wis. 237; Wilcox v. Continental Ins. Co. 85 Wis. 193; McFetridge v. Phenix Ins. Co. 84 Wis. 200; Waller v. Northern Ass. Co. 2 McCrary, 637; Davis v. Iowa S. Ins. Co. 67 Iowa, 494; Dwelling House Ins. Co. v. Raynolds, 41 Ill. App. 427; Clay F. & M. Ins. Co. v. Huron S. & L. M. Co. 31 Mich. 346; McCormick v. Springfield F. & M. Ins. Co. 66 Cal. 361; Cuthbertson v. N. C. H. Ins. Co. 96 N. C. 480; Wineland v. Security Ins. Co. 53 Md. 276. WINSLOW, J. If the defendant, in case of fire, could have recovered upon the policy of insurance, notwithstanding the use of benzine upon the premises and notwithstanding the condition of the title, then the defense to the note must fail. As to the use of benzine upon the premises, there can be little doubt that the policy was not vitiated thereby. The property was a large furniture factory, known to be such, insured as such, and expected to be used as such. The evidence shows that there were a few barrels of benzine kept on the premises at all times; that it was used in finishing the furniture manufactured on the premises. There is nothing to show that any more was kept than was reasonably necessary to operate properly a factory of this capacity. In the case of Faust v. Am. F. Ins. Co. 91 Wis. 158, it was held that where a contract of insurance, by the written portion, covers property to be used in conducting a particular business, the keeping of an article necessarily used in such business will not avoid the policy, even though expressly prohibited in the printed conditions of the policy. That was a case where benzine Davis vs. The Pioneer Furniture Co. was kept for use in a furniture repair shop, and it was shown to be customarily and necessarily used in such business. In the present case the burden was on the defendant to show that a condition of things existed which avoided the policy. This burden was not discharged by showing that benzine was used on the premises in manufacturing furniture in the usual and ordinary way, because the policy contemplated the manufacture of furniture and the use of such materials as are customarily used for such purpose; but it must further be shown that it was kept in unnecessarily large quantities, or for purposes not contemplated by the policy. Neither of these facts appears in the present case, and hence no breach of the condition was shown. The defendant's title was an estate in fee upon condition subsequent. It was in possession with no condition broken, and if it performed the prescribed conditions as to operation of the factory for five years, or in lieu thereof paid the grantor $10,000 in money, then its conditional fee became a fee simple; but, if it failed in both particulars, the title reverted to the grantor. Furthermore, an absolute deed in fee simple of the property, running to the defendant, was held by the Chippewa Valley Bank, in escrow, under a written, sealed agreement, by the terms of which the same was to be delivered to the defendant upon performance of the conditions named in the first deed. The question is whether this constitutes an "unconditional and sole ownership," within the meaning of the policy. In Johannes v. Standard Fire Office, 70 Wis. 196, a person in possession of land under a contract of purchase, who was not in default, but had only paid part of the purchase money, was held to be the sole, equitable owner; and it was held that his title was sole and unconditional for all purposes of insurance. If such ownership satisfies the condition as to unconditional and sole ownership, it is difficult to see why the defendant's title here did not satisfy the condition. In addition to its deed. Davis vs. The Pioneer Furniture Co. upon condition subsequent, it had, in effect, a land contract with the original owner, entitling it to an absolute deed in fee upon performance of the conditions or payment of $10,000; thus fulfilling all the conditions present in the Johannes Case. Furthermore, it appears on the face of the policy and of the application that the defendant's title was in some way made security for the performance of the conditions of a contract to employ a certain amount of labor for five years. It is true that it is stated that the contract is secured by a conditional mortgage on the property, and that this is not a correct description of the security; but the fact important for the insurer to know is that the defendant's title is in some effective way pledged or bound for the performance of the labor contract, and of that fact the insurer had knowledge, though the knowledge was inaccurate as to the exact form which the security took. Under these circumstances, we think the insurance company could not have defended against a claim for loss under the policy on the ground that defendant did not have the sole and unconditional ownership. These are the only contentions made by the answer which are insisted on in this court; and it follows that judgment should have been rendered for the plaintiff upon the verdict. This case presented no material disputed questions of fact, but only questions of law; hence it was a proper case for the rendition of a verdict subject to the opinion of the court. Stats. 1898, sec. 2857. In such a case the only question is which party is entitled to final judgment upon the uncontroverted facts, without regard to the verdict. Durant v. Abendroth, 69 N. Y. 148. The court below should have directed judgment for the plaintiff. By the Court.-Judgment reversed, and action remanded with directions to render judgment for the plaintiff for the amount demanded in the complaint. Ellis vs. Southwestern Land Co. ELLIS, Respondent, vs. SOUTHWESTERN LAND COMPANY, imp., Appellant. February 22-March 14, 1899. Equity: Reformation of deed: Mistake: Laches: Trusts and trustees: Adverse possession. 1. Mere delay, short of the statutory period of limitation, in bringing an action to reform a deed does not preclude the granting of such relief, where the action is brought soon after the discovery of the mistake on which it is based, and it does not appear that the other party has been prejudiced by the delay. 2. The possession of land by a trustee is the possession of the cestui que trust and will not, however long continued, ripen into title in the trustee. 3. By mistake the land in question, the title to which was held in trust, was conveyed by the trustee with other lands to a corporation of which he was president and manager, conducting its business and his own as if they were one. When he afterwards withdrew from the corporation he conveyed to it all his property of every kind in consideration of its assuming certain indebtedness. Thereafter the corporation delivered to him a lease of the land in question which had been executed by it as lessor, with intent to relinquish any claim to the property. The mistake had not then been discovered, and both parties supposed the legal title to this land was still in the trustee. Held, in an action by the cestui que trust to correct the mistake by reformation of the original deed to the corporation, that the latter was not entitled, as a condition of a recovery, to have the cestui que trust pay to it the sum, if any, which he owed the trustee on account of the land. APPEAL from a judgment of the circuit court for Eau Claire county: W. F. BAILEY, Circuit Judge. Affirmed. Action to reform a deed of real estate and recover possession of lands alleged to have been, by mistake, included therein and recover the rents and profits received by the grantee. The complaint stated facts sufficient to constitute a cause of action of the character indicated. The material facts were put in issue by the answer. In support of the Ellis vs. Southwestern Land Co. complaint the evidence established without controversy, or tended to establish, the following facts: Plaintiff, at the time of the trial, was an old man about eighty years of age. He was uneducated, a farmer by occupation, and had resided on a farm some sixteen miles from the city of Eau Claire for forty years. Defendant J. F. Ellis was a lawyer, real-estate dealer, and loan agent, doing business as such in the city of Eau Claire, and had been so engaged since prior to 1876. He did most of his father's business during most of the time mentioned, and took title to himself of considerable real estate, which he and his father testified on the trial belonged to the latter. In 1876 an agreement was entered into, partly by the father and partly by the son in the father's behalf, to purchase of a Mrs. Cook the property in question in this case, which agreement was consummated by the son conveying to Mrs. Cook eighty acres of land the title of which was in his name but which was considered the property of the father, and by Mrs. Cook conveying the property in question to defendant Ellis subject to a mortgage of $600. There was an agreement between the father and son that the latter should pay off the mortgage and reimburse himself therefor out of the income of the property, and the title was taken from Mrs. Cook pursuant to that agreement. The title to the property remained in the name of defendant Ellis till February 10, 1887, during which time it yielded a considerable income. each year, all of which was received by said Ellis. In 1885 defendant Ellis had considerable real estate, which he had accumulated in the course of his real-estate business, and he employed one Allen to assist him in conducting his business, agreeing to give Allen a one-third interest in the property for five years' services. Thereafter, up to February 10, 1887, Allen worked for Ellis, during which time the property in question was handled in the office, the taxes paid thereon and rents collected, the same as VOL. 102-26 |