Ohio Farmers Ins. Co. v. Glaze-55 Ind. App. 147. "It is hereby mutually stipulated and agreed by and between Andrew J. Glaze, party of the first part, and Ohio Farmers Insurance Company of LeRoy, Ohio, and other Companies signing this agreement, party of the second part, that any action taken by said party of the second part, in investigating the cause of fire or investigation and ascertaining the amount of loss and damage to the property of the party of the first part caused by fire alleged to have occurred on 23d day of December, 1908, shall not waive or invalidate any of the conditions of the policy of the party of the second part, held by the party of the first part and shall not waive or invalidate any rights whatever of either of the parties to this agreement. The intent of this agreement is to preserve the rights of all parties hereto and provide for an investigation of the fire and the determination of the amount of the loss or damage, in order that the party of the first part may not be delayed unnecessarily in his business and in order that the amount of his claim may be ascertained and determined without regard to the liability of the party of the second part.' It is the opinion of this court that under the authorities of both this and the Supreme Court there was a substantial compliance with all the provisions of the policy im1. posed upon appellee. He furnished all the proof of loss that he was able to furnish, because of loss of the original bills rendered for the goods. He supplied this loss in accordance with the requirements of appellant to the extent of his ability, by having statements made by numerous merchants from whom he made purchases, during the time required by the company, copies of which were furnished. appellant. He furnished an invoice of the goods, which was accepted by the adjuster of the company without requiring a verification thereof. It has been held in this State in well-considered cases, where an insurance company, in answer to a suit on a policy of insurance, alleges a failure on the part of the insured to produce bills, a reply that they were destroyed by fire, furnishes a good excuse. Aurora Fire Ins. Co. v. Johnson (1874), 46 Ind. 315; Ger Ohio Farmers Ins. Co. v. Glaze-55 Ind. App. 147. mania Ins. Co. v. Johnson (1874), 46 Ind. 331; German Alliance Ins. Co. v. Newbern (1910), 25 Okla. 489, 106 Pac. 826, 28 L. R. A. (N. S.) 337; Franklin Ins. Co. v. Culver (1855), 6 Ind. 137. It must follow therefore, that the law of this State is that where sufficient reason is given for not producing books and papers required by the policy, it meets the requirements of the law. It has also been repeatedly decided in this State that where provisions in an insurance policy are inserted for the sole benefit of the insurance company, they will be most 2. strongly construed in favor of the insured. Con tinental Ins. Co. v. Vanlue (1890), 126 Ind. 410, 415, 26 N. E. 119, 10 L. R. A. 843; Behler v. German Mut. Fire Ins. Co. (1879), 68 Ind. 347, 351; Milwaukee Mechanics Ins. Co. v. Niewedde (1894), 12 Ind. App. 145, 39 N. E. 757; Aetna Ins. Co. v. Strout (1896), 16 Ind. App. 160, 44 N. E. 934; Kentucky Mut. Ins. Co. v. Jenks (1854), 5 Ind. 96; Indiana Mut. Fire Ins. Co. v. Conner (1854), 5 Ind. 170. A stipulation in a policy that "no agent has 3. power to waive any condition of this contract unless by written endorsement thereon", refers to conditions essential to make the contract obligatory and binding between the parties in the first instance, and to its continuing force and obligation till loss occurs, but does not refer to stipulations requiring the assured to make proof of loss in a special manner, and such stipulations may be waived by an agent without endorsement. Indiana Ins. Co. v. Capehart (1886), 108 Ind. 270, 8 N. E. 285; Havens v. Home Ins. Co. (1887), 111 Ind. 90, 12 N. E. 137, 69 Am. Rep. 689; Commercial, etc., Ins. Co. v. State, ex rel. (1887), 113 Ind. 331, 335, 15 N. E. 518; Phoenix Fire Ins. Co. v. Pickel (1891), 3 Ind. App. 332, 334, 29 N. E. 432. Although an insurance policy on its face prohibits 4. any agent from waiving any of its conditions where other proofs than those required in the policy are accepted by an agent of the company, duly authorized to Ohio Farmers Ins. Co. v. Glaze-55 Ind. App. 147. act with reference to that subject, the company will be deemed to have waived the proof required by the policy. Indiana Ins. Co. v. Capehart, supra; Germania Fire Ins. Co. v. Pitcher (1902), 160 Ind. 392, 64 N. E. 921, 66 N. E. 1003. See, also, American Fire Ins. Co. v. Sisk (1893), 9 Ind. App. 305, 36 N. E. 659; Western Assur. Co. v. McCarty (1897), 18 Ind App. 449, 48 N. E. 265; German American Ins. Co. v. Sanders (1896), 17 Ind. App. 134, 46 N. E. 535; Aetna Ins. Co. v. Shryer (1882), 85 Ind. 362; Indiana Ins. Co. v. Pringle (1898), 21 Ind. App. 559, 52 N. E. 821. So it must be held, in this case, we think, in all fairness, that the waiver clause in the policy, as well as the waiver agreement subsequently procured of the insured by 1. the adjuster of the company, cannot be held to require impossible things of a property owner who has paid for his insurance and sustained a loss about which no question is raised in the evidence except as to the amount thereof, and that question being settled adversely to appellant's contention by the jury, this court cannot disturb the verdict. It follows that the judgment is sustained by sufficient evidence and is not contrary to law. The motion for peremptory instructions was properly overruled. We have also examined the instructions which were given over objections, and those which were refused over objections, and find the law was correctly stated within the issues and the evidence. No error appears in the record which warrants this court in reversing the case. Judgment affirmed. NOTE.-Reported in 101 N. E. 734. As to waiver of condition in policies requiring waivers to be endorsed in writing, see 107 Am. St. 99. As to the effect of limitations on an agent's authority to waive conditions in an insurance policy, see 2 Ann. Cas. 112, 9 Ann. Cas. 380. See, also, under (1) 19 Cyc. 849, 851; (2) 19 Cyc. 656; (3) 19 Cyc. 860; (4) 19 Cyc. 862. Kimberlin v. Templeton-55 Ind. App. 155. KIMBERLIN ET AL. v. TEMPLETON ET AL. [No. 8,040. Filed June 17, 1913. Rehearing denied October 31, 1913. Transfer denied December 10, 1913.] 1. VENDOR AND PURCHASER.-Contract for Sale of Real Estate.Title of Vendee.-Equitable Ownership.-Where there is a contract for the sale of real estate, the vendor simply holds the title as security for the purchase money, and the vendee becomes the equitable owner thereof so that he secures all the benefits and assumes all the risks of ownership. pp. 160, 161. 2. VENDOR AND PURCHASER.-Contract for Sale of Real Estate.Construction.-On appeal to the equity side of the court, a contract for the sale of real estate will be so construed as not to give either party an unfair advantage. p. 160. 3. COVENANTS.-Warranties Against Incumbrances.-Sewer Assessment.-A lien for a sewer assessment, growing out of the construction of a sewer after the execution of a contract for the sale of real estate, and prior to the execution of a deed pursuant to such contract, is not covered by the covenants of warranty in such deed. p. 161. 4. COVENANTS.― Warranties Against Incumbrances.— Scope.― Although a lien created solely by operation of law after the execution of a contract for the sale of real estate is not embraced in the covenants of warranty in the deed subsequently executed pursuant to such contract, such lien, having attached, would be covered by the warranties in a deed executed by such vendee on his conveyance of such real estate. p. 163. From Superior Court of Marion County (78,866); Vinson Carter, Judge. Action by Leroy Templeton against Albert C. Kimberlin and others. From a judgment for plaintiff, the defendants Albert C. Kimberlin and James A. Wilson appeal. Affirmed. John O. Spahr, James A. Ross, David R. Murray and Matson, Gates & Ross, for appellants. Barrett & Barrett, Denny, Bowen & Denny, Ayres & Ayres and Jones, Hammond & Jones, for appellees. SHEA, J.-This action was brought by appellee, Leroy Templeton, against appellants and his coappellees, Horatio S. and Annie M. Garner, Mary C. Kimberlin and Mamie Kimberlin v. Templeton-55 Ind. App. 155. E. Wilson, to recover damages for an alleged breach of certain covenants in a chain of warranty deeds executed by Horatio S. Garner and Annie M. Garner, his wife; James A. Wilson and Mamie E. Wilson, his wife; Albert C. Kimberlin and Mary C. Kimberlin, his wife; in the order named. The alleged breach consisted in the existence of and subsequent discharge by appellee Templeton of a certain municipal assessment which is alleged to have become a lien on the land conveyed prior to the first conveyance by Garner and his wife. The cause was tried by the court, a special finding of facts made, and conclusions of law stated thereon. The substance of the special findings is as follows: On and prior to May 3, 1906, Horatio S. Garner was the owner in fee simple of certain described real estate in Marion County, and on that day entered into a written contract with George Brannon as follows: "Indianapolis, Indiana, May 3rd, 1906. Cline & Wilkins, Agents. I will give the sum of Eighteen Thousand Dollars ($18,000.00) payable as follows: Seven Thousand ($7,000.00) Dollars in cash, balance in two equal payments payable on or before one and two years after date, with five per cent (5%) interest, payable semi-annually; for the real estate described as follows: (here follows description of real estate), being all the land I own in said section and township, same to be free and clear of all encumbrances, excepting taxes for the year 1906 payable in 1907, warranty deed and abstract showing good title to be furnished me. (Signed) G. H. Brannon. I accept the above proposition with the above alterations this 3rd day of May, 1906. (Signed) H. S. Garner. I accept H. S. Garner's alterations in the above proposition this 3rd day of May, 1906, at 4:30 o'clock P. M. (Signed) G. H. Brannon." On May 8, 1906, Garner furnished an abstract of title to the real estate, which he claimed showed a good title in him, to said Brannon. The latter's attorneys claimed some question might be raised by future purchasers, and a decree quieting the title should be secured. Garner, while claim |