Loy v. Home Insurance Company. The imposition by the amendatory act of the penalty for disregarding a prohibition by the vote of the electors, stands upon the same footing as would the imposition by the original charter of a penalty for violating a similar prohibition by the council. The part of section 3 of the act of 1876, which we have quoted, clearly makes it unlawful for any person, without any exception of those having anexpired licenses, to sell, bargain or dispose of liquors after the voters shall determine that no license shall be granted. This provides for an effectual revocation of outstanding licenses by the vote of the electors. Although penal statutes should be construed strictly, they cannot be construed contrary to the language used; and to construe this act so as to exclude from its operation those having licenses unexpired, when the language used is that "any person thereafter (that is after the vote) who shall sell," etc., "shall be guilty of a misdemeanor," would be contrary to the plain import of the language. Judgment affirmed. LOY V. HOME INSURANCE COMPANY. (24 Minn. 315.) Insurance-change of title by legal process or judicial decree-foreclosure by advertisement. A policy of insurance on a house provided that if the property be sold or transferred, or any change takes place in title or possession, whether by legal process or judicial decree, or voluntary transfer or conveyance, the policy should be void. A mortgage of the premises subsequently executed was foreclosed and a sale was had, but the period for redemption had not expired nor had possession been changed. A loss subsequently occurring, held, that neither the giving of the mortgage nor the foreclosure proceedings avoided the policy.* A CTION on a policy of fire insurance. The opinion states the facts. The plaintiff had judgment below. Henry C. Butler, for appellant. The words "any change" meant a partial as well as entire change, and the word "transfer" a partial To same effect, Hartford Fire Ins. Co. v. Walsh (54 Ill. 164), 5 Am. Rep. 115; Manhattan F. I Weill (28 Gratt. 389), 26 Am. Rep. 264. Loy v. Home Insurance Company. as well as entire transfer. Under the statutes a mortgage was deemed a conveyance for every purpose save that it did not confer the right of possession without a foreclosure. Gen. St., ch. 40, § 26; id., ch. 75, § 11; Plath v. M. F. M. F. Ins. Co., 23 Minn. 479; S. C., 23 Am. Rep. 697; Langdon v. M. F. M. F. Ins. Co., 22 Minn. 194 ; and by the term "legal process" the parties intended any proceeding authorized or provided by law as distinguished froin a voluntary conveyance. Start & Gove and P. M. Tolbert, for respondent. CORNELL, J. The policy on which this action is brought contains the following among other conditions: * * "If the property be sold or transferred or any change takes place in title or possession (except by reason of the death of the insured), whether by legal process or judicial decree, or voluntary transfer or conveyance, this policy shall be void." The property insured consisted of a dwelling-house and certain furniture and wearing apparel therein contained situate upon premises belonging to the respondent. After the issuance of the policy the respondent mortgaged the premises, and the same were sold under a power of sale upon a foreclosure of the mortgage by advertisement pursuant to the statute. After the sale and before the period for redemption had expired, the loss occurred, the respondent still being in possession of the premises. The question for consideration is whether this foreclosure sale was "a sale, transfer or change in title" within the meaning of the foregoing condition, such as avoided the policy. In construing a condition of this character, if, upon a consideration of the whole contract, it is uncertain whether the language of the stipulation is used in an enlarged or restricted sense, or if it is fairly open to two constructions, one of which will uphold and the other defeat the claim of the insured to the indemnity which it was his object in making the insurance to obtain, that should be adopted which is most favorable to the insured, and most in harmony with such, the main purpose of the contract on his part. The reasons for this are two-fold; the tendency of any such stipulation is to narrow the range and limit the force of the underwriter's principal obliga tion. It is also inserted by him for his own benefit and in language of his own choice. If any doubt arises as to its meaning the fault is Loy v. Home Insurance Company. his in not making use of more definite terms in which to express it; hence, the rule of strict construction against him, and the liberal one in favor of the assured, which prevail under such circumstances. Hoffman v. Eina Ins. Co., 32 N. Y. 405; Westfall v. Hudson Riv. Ins. Co., 2 Duer, 495; Ins Co. v. Wright, 1 Wall. 456; West. Ins. Co. v. Cropper, 32 Penn. St. 351. Applying these principles, a correct interpretation of this condition of the policy would seem to be attended with but little difficulty. In the first place it makes a sale or transfer of the property a cause for avoiding the policy. Within the meaning of the stipulation this refers to an absolute and completed and not a conditional or incom plete sale or transfer; in other words, a sale that wholly divests the owner of the property of all insurable interest therein. The succeeding clause which gives a like effect to any "change in title, whether by legal process, judicial degree or voluntary transfer or conveyance," has reference to an absolute transfer of the legal title in one of these ways, though such transfer, as in the case of a conveyance in trust or by a deed absolute in terms, but intended merely as a security, might not operate to divest the owner of the property of all his insurable interest therein. In our judgment nothing short of a complete transfer of the legal title comes within the prohibition of this stipulation. The mere creation of a lien or incumbrance upon the property insured cannot be regarded as effecting "any change in title," either in the legal sense or according to the ordinary and popular understanding. "In legal acceptation," says ALLEN, J., in Springfield F. and M. Ins. Co. v. Allen, 43 N. Y. 389; S. C., 3 Am. Rep. 711, "title has respect to that which is the subject of ownership, and is that which is the foundation of ownership; and with a change of title, the right of property, the ownership passes." As applied to real estate it is defined to be "the means whereby the owner of lands or other real property has the just and legal possession and enjoyment of it," "the lawful cause or ground of possessing that which is ours." Law Dict. 986. In this sense, which is also the ordinary and popular one in which the word is used, a "change in title" is a change in ownership which carries the legal right of possession and property, and it is in this sense we must understand the word as having been used in this clause. Nash v. Minneapolis Mill Company. Although, within the meaning of the registry laws, a mortgage of real estate is defined to be a conveyance, yet under our laws it is not deemed a conveyance in the sense of passing any estate or interest in lands, or transferring any legal title thereto. The only interest which a mortgagee acquires is a lien upon the land in way of security, which, prior to the foreclosure of the right of redemption, is treated as personal property that goes to the administrator or executor and not to the heirs. The legal title, with the right of possession, remains with the mortgagor until a completed foreclosure is had by sale, and the same becomes absolute by the expiration of the period for redemption. Until this time expires the purchaser at the sale has only a chattel and equitable interest. He has no legal title to the lands nor any conveyable estate therein. The character of his interest is the same as that of a mortgagee before foreclosure sale. Gen. St., ch. 52, § 11; id., ch. 75, § 11; Donnelly v. Simonton, 7 Minn. 110 (167); Horton v. Maffitt, 14 id. 290–292. Neither is a foreclosure by advertisement "legal process" or a "judicial decree." The proceedings in this kind of a foreclosure are carried on wholly outside of court and without the aid of its process or decree. It is obvious, then, that neither the giving of the mortgage nor the sale of the premises on foreclosure, the time for redemption not having expired, effected any change in title or pos session in respect to the property insured, and did not, therefore, avoid the policy. Order affirmed. NASH V. MINNEAPOLIS MILL CO. (24 Minn. 501.) Negligence-liability for, as between landlord and tenant. A mill company, owning land on the bank of a river, constructed a canal by which it furnished water-power to persons on both sides, to whom it rented mill sites, with a right of way across the canal. The canal was entirely covered over with a platform of wood, which had been used for ten years, to the company's knowledge, by all persons having business at those mills, for the purpose of passing and repassing. Among the tenants was M., whe sublet, and whose tenant constructed that part of the platform opposite his Nash v. Minneapolis Mill Company. premises. When the sublease expired, M. continued in possession under his lease. Held, that the duty of keeping the platform in repair, as to the public devolved on the company and not on M. * A CTION against Minneapolis Mill Co. and its tenant, Morrison, for injuries sustained by the breaking of a platform. The opinion states the case. The defendants had judgment below. Lochran, McNair & Gilfillan, for appellant. Shaw & Levi, for respondent, Minneapolis Mill Company. The tenant built the platform for his own benefit, and the landlord had no right to dictate how it should be built, or in what manner it should be maintained. Taylor's Landl. and Ten. (2d ed.), § 175; Saltonstall v. Banker, 8 Gray, 195; Owings v. Jones, 9 Md. 108. Again, the tenant is prima facie liable for the defective repair of the leased premises, and the landlord is only responsible where he has contracted to make the repairs, or has been guilty of misfeasance. Nelson v. L. B. Co., L. R. 2 C. P. 311; Payne v. Rogers, 2 H. Bl. 349; Todd v. Flight, 9 C. B. (N. S.) 377; Russell v. Shenton, 3 Q. B. 349; Pretty v. Bickmore, L. R. 8 C. P. 401; Gwinnell v. Gwamer, L. R. 10 C. P. 631; S. C. 14 Moak's Eng. Rep. 492; Gwathney v. L. M. R. Co. 12 Ohio St. 92; Pickard v. Collins, 23 Barb. 444; Taylor v. Mayor, 4 E. D. Smith, 559; Kahn v. Love, 3 Or. 206; Mayor v. Corliss, 2 Sandf. 301. Bradley & Morrison, for respondent, Morrison. GILFILLAN, Ch. J. On the trial below, after the plaintiff had closed his case, the court dismissed the action as to both defendants, on the ground that plaintiff had failed to make out a cause of action. There was evidence sufficient to go to the jury, from which they might have arrived at these conclusions of fact. The mill company owns, in the city of Minneapolis, a strip of land lying along the westerly bank of the Mississippi river, partly above and partly below the falls. Some years ago it constructed, for convenience in using this property for milling purposes, a canal about eighty feet wide at the upper end, and diminishing in width toward the lower end, extending through the strip nearly parallel with the river for the dis * See McAlpin v. Powell (70 N. Y. 196), 26 Am. Rep. 555, and note, 562; Parker v. Portland Publishing Co., ante, p. 262. |