Industrial Bank of Elizabeth City v. Resolute Fire Insurance

Stacy, C. J.

Three questions are to be answered in determining the correctness of the nonsuit.

In the first place, while the plaintiff’s mortgage, the policy in suit and the Williams mortgage all'bear date 6 January, 1941, it does not affirmatively appear that the Williams mortgage was in existence at the time of the issuance of the policy. Hence, on demurrer to the evidence, the question of concealment or misrepresentation concerning this mortgage would seem to be for the jury.

Wells v. Ins. Co., 211 N. C., 427 , 190 S. E., 744 .

Secondly, as no provision was made by agreement in writing added to the policy for the Williams mortgage, its existence at the time of the loss would seem to vitiate the policy or relieve the defendant from liability thereunder, except as to any lien, mortgage, or other encumbrance specifically set forth and described in paragraph D of the policy.

Roper v. Ins. Co., 161 N. C., 151 , 76 S. E., 869 . The plaintiff’s mortgage is so described in paragraph D of the policy which brings it within the exception, and is therefore not affected by the Williams mortgage.

Bank v. Assurance Co., 188 N. C., 747 , 125 S. E., 631 . Indeed, the exception appears to have been made for the benefit of the plaintiff.

Dixon v. Horne, 180 N. C., 585 , 105 S. E., 270 .

Thirdly, the evidence is equivocal as to whether suit was commenced within twelve months next after the happening of the loss. This makes *392 it a matter for the twelve.

Dozier v. Wood, 208 N. C., 414 , 181 S. E., 336 . Discrepancies and contradictions, even in plaintiff’s evidence, are for the jury, and not for the court.

Shell v. Roseman, 155 N. C., 90 , 71 S. E., 86 .

The evidence which makes for the plaintiff’s claim appears to be sufficient to overcome the demurrer.

Reversed.