Bowman v. Franklin Fire Insurance

Auvey, J., delivered the opinion of the Court. 1. In regard to the first question presented on this appeal, we can have no doubt. There would have been no ⁶³⁰ reason for the agreement, dispensing with due and formal authentication of the records of the several judgments given in evidence, if the objection now urged could he maintained. It was expressly agreed, that the abstracts of judgments then made and filed with the commissioner, might he offered in evidence, as records of the Court therein styled, with the same effect as if the judgments onid records had been duly authenticated as such, according to the Act of Congress, and the laws of Maryland; the plaintiff reserving the right to object to such records as evidence, on other grounds than the want of due authentication ; and with the same reservation of right to object, the facts stated in the certificates accompanying the abstracts were admitted to be true.

Under this agreement, the short abstracts of the judgments were to he received and have allowed to them the same force and effect as if formal and duly authenticated records of those judgments had been produced; and by virtue of the agreement, in connection with the sections of the Code of Virginia, which, were produced and admitted to he in force in that State, where the property was situate and the judgments were rendered, the abstract of the judgment of McCoy, use of Barksdale, vs. Keen and Walker, referred to in the Court’s instruction, was not only conclusive evidence of the existence of the judgment, hut of the lien created thereby. 2. The 19th clause of the conditions of the policy sued on provides, that “Any incumbrance on the property hereby insured, whether existing at the time of issuing this policy, or imposed subsequently thereto, must he assented to by the company, otherwise the policy shall he void; ’ ’ and the second question presented is, whether a judgment lien is an incumbrance within the meaning of this provision of the policy ? It is conceded that judgment liens on the property insured existed at the date of the policy, and that the fact of their existence was not disclosed to the insurance ⁶³¹ company, and consequently were never assented to by it. Does the failure to disclose the existence of the liens render the policy void?

If a judgment lien constitutes an incumbrance, within the meaning of the policy, there can be but one answer to the question, and that in the affirmative. According to the well understood meaning of the word incumbrance, it lias always been supposed to embrace judgment liens. Indeed no incumbrance is more common than that created by the liens of judgments. It has been repeatedly held, if judicial decisions could he required on such a question, that the term incumbrance does embrace judgment liens.

Jenkins vs. Hopkins, 8 Pick., 346 ; Smith vs. McCampbell, 1 Blackf., 100 ; Hall vs. Dean, 13 John., 105 ; and we have not been able to find anything in any of the numerous conditions and stipulations of the policy, which, by any fair construction, will justify the restricted meaning- attempted to he assigned to the term by the plaintiff in this case. The condition in the policy is a