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transfer to the company of property of less plaintiff and defendant was consummated de real value than that at which it is taken, sire to have their stock in the plaintiff comthe transaction is fraudulent in law as to pany canceled, and the consideration paid the corporation. The rule adopted by the therefor returned, their grievances should court is based on the so-called “trust fund" be made the basis of an independent action doctrine, in accordance with which a stock- by them against the corporation, or perhaps holder, seeking to escape personal liability against the promoters or officers of the comto creditors on the ground that his stock pany who, by fraudulent misrepresentations, has been fully paid for, must show that he have induced such stockholders to invest their has in good faith invested in the enterprise money. The plaintiff is not insolvent, and is the value of the stock received by him, either a going concern, and, as a corporation comin money or its equivalent. But this doctrine petent to make contracts for the issuance of has no application as between the corpora- stock and to act through a duly selected tion itself and the stockholder, who has re- board of directors, it cannot complain of a ceived his stock in exchange for property sur- transaction entered into in good faith, alrendered at an agreed valuation. State Trust though, as the result of such transaction, it Co. v. Turner, 111 Iowa, 664, 82 N. W. 1029, has not received full value in money for 53 L. R. A. 136; Esgen v. Smith, 113 Iowa, stock lawfully issued. Counsel for appellee 25, 84 N. W. 954. In the transaction between insists that the action is for the benefit of the the corporation and the stockholder the lat- stockholders of the plaintiff company, but this ter does not occupy any position of trust or is true only in the sense that any action of confidence, although he may be a promoter the corporation is presumably for the benefit or officer of the company, and in the absence of its stockholders. The stockholders themof actual fraud the transaction is to be up- selves are not parties to the suit, and as such held, although it may subsequently prove to they make no complaint, nor is the action have been disadvantageous to the corpora- one in which any relief to the stockholders, tion. Scovill v. Thayer, 105 U. S. 143, 26 L. as distinct in interest from the corporation, is Ed. 968; Bank of Ft. Madison v. Alden, 129 asked. U. S. 372, 9 Sup. Ct. 332, 32 L. Ed. 725.
The trial court erred in decreeing a canThe cases relied upon by the trial judge in cellation of any portion of the stock of dereaching his conclusion, and now insisted up- fendant, and on defendant's appeal the deon for appellee as supporting such conclusion, cree is reversed. It follows that there was are not in point. In Hallam v. Indianola no error of which the plaintiff can complain. Hotel Co., 56 Iowa, 178, 9 N. W. 111, it was The result is that the decree is affirmed on held that a director owed to the corporation plaintiff's appeal, and on defendant's appeal the duty of dealing in good faith with refer- it is reversed. ence to the corporate property in the enforcement of a claim by him as creditor BISHOP, J., takes no part, against the corporation, and for his bad faith in buying the corporate property at much less than its real value, the sale to him was set aside. In Hinkley V. Sac Oil & Pipe
STEBER et al. v, CHICAGO & G. W. RY. CO. Line Co., 132 Iowa, 396, 107 N. W. 629, it
et al. was held that a stockholder was allowed to
(Supreme Court of Iowa. July 9, 1908.) have his stock canceled on account of fraud- 1. PLEADING MISJOINDER OF PARTIES AND ulent representations of the promoters as to
CAUSES OF ACTION-MODE OF MAKING OB
JECTION. the value of the business in which he had
Misjoinder of parties or of causes of acbeen induced to invest. Other cases relied tion can be raised only by motion, and not by on for appellee are equally inapplicable. In
demurrer or answer. Camden v. Stuart, 144 U. S. 104, 12 Sup. Ct.
2. PARTIES MISJOINDER AMENDMENT-As.
SIGNMENT OF INTEREST-EFFECT. 585, 36 L. Ed. 363, Coit v. Gold Amalgamat
Where S., a landowner, and his tenant sued ing Co., 119 U. S. 313, 7 Sup. Ct. 231, 30 L. for damages for flooding land and crops, to enEd. 420, and Coleman v. Howe, 154 Ill. 458, join the maintenance of the nuisance causing it, 39 N. E. 725, 45 Am. St. Rep. 133, the con
and for an underground passage under defend
ant's tracks, but before trial the tenant assigntroversy was between creditors and stock
ed his claim to S., and this fact was pleaded by holders, and the holdings simply were that, an amendment and proved on the trial, the trial as against creditors, the stockholder cannot court might well treat S. as the sole plaintif,
though allowing the action to proceed under escape liability by showing payment for his
the original title, and a judgment for plaintiff stock in property grossly overvalued. This
under such conditions will not be reversed for is not a controversy between creditors of the misjoinder of parties. plaintiff corporation and defendant as 3. PLEADING-WAIVER OF OBJECTIONS-Mis
JOINDER OF CAUSES OF ACTION. stockholder, nor between stockholders, who
Where, in such case, the claim to an underhave been induced to purchase in the belief ground tunnel was dismissed, and by stipulation that the stock of the company had been fully filed by the parties the claim of misjoinder was paid for in cash, and the corporation itself,
withdrawn from the case, both in the trial court
and appellate court, the question of misjoinder with a view of the cancellation of the stock
of causes could be of no avail on appeal. thus purchased. If the stockholders who be
[Ed. Note.-For cases in point, see Cent, Dig. came such after the transaction between the vol. 39, Pleading, $ 1355.]
4. WATERS AND WATER COURSES-FLOWAGE- right of way as to dam the water which REMEDIES INCONSISTENCY -DAMAGES-IN
naturally flowed from one side of the right JUNCTION. In an action for damages for the flooding
of way to the other, and to constitute a nui. of land and crops in certain years because of a sance; that both Steber and Warbis were railway embankment, and to enjoin the main
damaged by the overflow of the lands, and tenance of the embankment as a nuisance, the remedies were not inconsistent, and a judgment
that they will continue to suffer in the fufor relief in both respects might properly be
ture unless the nuisance be abated. Warbis granted.
assigned his claim for damages and other 5. SAME-MEASURE OF DAMAGES.
rights to Steber, although the action seems to The measure of damages to land from flood
have been brought in the names of both. In ing in certain years, as the result of an embankment, is the difference in the value of the prem
constructing its roadbed defendant built a ises immediately before the flooding and the culvert through its right of way to carry value of the same immediately after.
water from one part of the farm across the (Ed. Vote.- For cases in point, see Cent. Dig. right of way and to the other, but it is claimvol. 48, Waters and Water Courses, $ 255.)
ed that this culvert was and is inadequate in 6. SAME — DAMAGES FROM NUISANCE -- CON
size, and insufficient to carry the water, and TRIBUTORY NEGLIGENCE. The doctrine of contributory negligence
that even were the culvert sufficient, defenddoes not apply to actions for damages from a ants failed to properly ditch so as to take the ruisance, and while one suing for damages for
water to the culvert. The damages asked the flooding of land by a railway embankment cannot recover damages which he himself caus
are for the years 1903, 1904, 1905, and 1906, rod. by the construction of drains from other and are claimed as resulting both to the land ponds and low places, a showing of damages
and to the crops growing thereon. The claim from such causes would, at most. merely reduce the amount of damages recoverable, and would
for an under crossing over the right of way Lot constitute a complete defense.
mentioned in the preceding statement is out 7. SAME-REDUCTION OF DAMAGES-DRAINAGE of the case, because dismissed by the trial BY OWNER.
court, unless it be proper to be now considIn an action for damages from flooding
ered upon the question of misjoinder of land, caused by an embankment, the fact that plaintiff had drained certain ponds and low
causes of action. There is little doubt under places by tiling into the place where the flood- ! the testimony but that the railway embanking occurred, will not entitle defendant to a
ment, culvert, and ditches were so constructreduction of damages, where there is no showing that the course of flow has been changed, or
ed as to amount to a nuisance, and that both that the flood has been augmented thereby. the owner and the tenant suffered damages
from the overflow of water, indeed appelAppeal from District Court, Calhoun Coun
lants' counsel practically concede it. They ty; Z. A. Church, Judge.
rely for a reversal chiefly upon some techniSuit in equity to enjoin a nuisance caused,
cal objections. They say in their brief that as is alleged, by the negligent construction
there was a misjoinder of parties and of of a railway embankment, whereby plaintiff's
causes of action; that plaintiffs, through the land was flooded. Damages were also claim
construction of tile drains, caused or coned for injuries done the land. By an amend
tributed to the injuries of which they comment to the petition plaintiff's sought to have
plain, and that plaintiffs are not entitled to their right to an under crossing through de
| both damages and a permanent injunction ; fendants' right of way adjudicated. The
that plaintiffs must elect as to their remedamages originally claimed were for the
dies, and, in effect, that the damages allowyears 1903, 1904, and 1905, and by supple
ed are excessive. Warbis, the tenant, is Stebmental petition damages for the year 1906
er's brother-in-law, and when the action was were also asked. Defendants answered by
brought these parties were joined as plaingeneral denial, and also pleaded misjoinder
tiffs. During the trial Steber introduced in of parties and causes of action, and some oth
evidence assignments from Warbis of all er matters to be hereafter noted. The case
claims he held against the defendants. The was tried to the court, resulting in a judg.
title of the case was not changed, although ment for plaintiff Steber in the sum of $300,
it was alleged in an amendment to the petiand a decree of permanent injunction against the continuance of the nuisance. The mat
tion filed prior to the trial, that Warbis had
assigned all his claims to Steber. Defendters of the underground crossing were dismissed. Defendants appeal. Affirmed.
ants, among other things, pleaded in answer
that plaintiffs had no right to maintain this E. C. Stevenson and Healy & IIealy, for action jointly, in that they were not entitled appellants. M. W. Frick, for appellees. to the same relief, or to any relief whatever.
Defendants sought to raise the issue of misDEEMER, J. Plaintiff Steber is the own- joinder of parties and causes of action by er of 17 acres of land in Calhoun county, answer, in which they pleaded these matters Iowa, through which runs defendants' rail- as conclusions of law. The rule is that the way. Warbis was Steber's tenant, occupy- only way to reach a misjoinder is by motion, ing the lands from March 1, 1903, to March and not by demurrer or by answer. Citizens' 1, 1907. It is claimed that defendants so Bank v. Jess, 127 Iowa, 450, 103 N. W. 471 ; negligently constructed their roadbed over Mitchell v. McLeod, 127 Iowa, 733, 104 N. W. and through plaintiff's land and along its 349. Aside from this, however, in view of the assignments by Warbis, the tenant, of all difference in the value of the premises imhis claims against the defendants to the mediately before the flooding and the value plaintiff Steber, the trial court may well of the same immediately after. Harvey v. have treated Steber as the sole plaintiff, al- R. R. Co., supra; Drake v. R. R., 63 Iowa, though allowing the action to proceed in the 302, 19 N. W. 215, 50 Am. Rep. 746; Blunck name of both. In that event there was no V. R. R. (Iowa) 115 N. W. 1013. Some of the misjoinder of parties. As to causes of ac- damage witnesses based their opinions upon tion: The claim to an underground crossing the destruction of the crops by the flooding was dismissed, and the judgment was in fa- of the land. There was also testimony as to vor of plaintiff Steber alone for the damages the depreciation in the rental value of the sustained, to wit, $500, and an order for a farm, during the years in controversy, of permanent injunction, or rather for an abate from 75 cents to $1 per acre. This was introment of the nuisance, in his favor. Moreover, duced to show the damages suffered by the there was a stipulation filed by the parties tenant. These damages did not equal the May 9, 1908, whereby the claim of misjoind- amount allowed by the trial court, but, adder was withdrawn from the case, both in the ed to the amount of damages suffered by the lower court and here.
fee owner, the amount allowed by the trial 2. Next it is argued that plaintiff cannot court was, under all circumstances, very modhave judgment for a permanent nuisance and erate. Indeed the testimony shows damages an order for the abatement of the same in the to the land alone amount to considerably same action. This contention seems to be more than $500. settled adversely to appellants' contention in Next it is contended that plaintiff Steber, at least two cases: Downing v. Oskaloosa, by the construction of tile drains from ponds 86 Iowa, 352, 53 N. W. 256; Harvey v. R. R., and low places, contributed to his own injury, 129 Iowa, 465, 105 N. W. 958, 3 L. R. A. (N. and therefore cannot recover. The doctrine S.) 973, 113 Am. St. Rep. 483. Aside from of contributory negligence does not apply to this, however, and without at this time doing such cases as this. Bowman v. Humphrey, more than cite these cases, it will be observed 132 Iowa, 234, 109 N. W. 714, 6 L. R. A. (N. that plaintiff's cause of action was for dam- S.) 1111; R. R. Co. v. Smith, 64 Fed. 679, ages done his land during certain specific 12 C. C. A. 384, 27 L. R. A. 131. Of course, years, and for an abatement of the nuisance plaintiff cannot recover damages which he in the future. He was not asking for dam- himself caused. But it is no defense for ages on the theory that the nuisance was of defendants to show that plaintiff contributed such a permanent nature as that it could not to his own injuries. At most such showing be abated. But, on the contrary, he took would go in reduction of damages, and not an exactly opposite position. He claimed that as a complete defense. The testimony does it could be abated, and the court so ordered. not show that plaintiff did anything with refNot only did plaintiff ask damages for in- erence to these tile drains which he was not jury done the land, but he held an assign- authorized to do. He did not change the flow ment of his tenant's claim for damages for of the water, and did nothing to augment the these specific years, for which he was also floods of which he complains. That defendallowed damages. We are not to be under- ants are entitled to no reduction of damages stood as saying now that one may have full on such showing, see Dorr v. Simmerson, 127 damages for a permanent structure constitut- Iowa, 551, 103 N. W. 806; Hull v. Harker, ing a nuisance, past, present, and prospective 130 Iowa, 190, 106 N. W. 629; Harvey v. R. and also an order for an abatement of the R. Co., supra.
Even were there an apprenuisance. Upon that proposition we make no ciable increase in the natural flow of water pronouncement at this time. The case was by the acts of plaintiff, it is not shown that not tried on that theory, and there is no oc- such increase was sufficient to affect the casion to decide the matter now. As the allowance made by the trial court of damcase is in equity, rulings on evidence are not ages for the years in question. There was to be considered, and the only questions to be no error in the decree ordering the abatedetermined on this appeal in this connection ment of the nuisance. This may easily be are, did defendants build their railway en- done by the enlargement of the culvert and bankment in such a negligent and unskillful the construction of proper ditches. The case, manner as to da mage plaintiff's land? and is as we have said, was not tried on the theory there competent proof of such damages? of allowing damages for a permanent imThat the culvert through the enbankment provement which could not be altered or and the construction of ditches leading there- changed, but distinctly upon the theory that to were inadequate we have no doubt, and the plaintiff was damaged so much each year. only other matter for determination is, is Plaintiff does not complain of the order disthere proper proof of plaintiff's damage? missing that part of his petition for an unPlaintiff under his assignment is entitled der crossing, hence that matter is out of the to the damages suffered by his tenant as well as his own damages during the years in ques- The decree seems to be correct, and it is tion. As to the land, the measure is the affirmed.
Appeal from District Court, Benton CounCONE V. CENTURY FIRE INS. CO. ty; G. W. Burnham, Judge.
(Supreme Court of Iowa. July 9, 1908.) Suit on a fire insurance policy. There was 1. INSURANCE FORFEITURE OF POLICY a directed verdict for the plaintiff, and from "CHANGE OF TITLE OR INTEREST.'
a judgment thereon the defendant appeals. Certain buildings and the furniture and fix
Reversed. tures in one of them were insured by plaintiff in defendant company. Plaintiff executed a Read & Read, for appellant. Wade, Dutchmortgage on the insured property to a bank in
er & Davis, for appellee. another state purporting to secure a certain note, and on the same day executed a warranty deed to his sister, conveying the real estate on SHERWIN, J. The policy in suit was iswhich the buildings stood for an expressed con- sued on the 15th day of September, 1904, for sideration, subject to the mortgage mentioned. The deed and mortgage were recorded, but in
a period of five years, and covered certain fact no consideration passed for either, and nei
buildings and the furniture and fixtures in ther was ever in the possession of those in whose one of said buildings. It contained the profavor they were executed. A deed to the prop- viso: “This entire policy shall be void if erty was executed by plaintiff's sister on the same day and delivered to him; the object of
there be any contract of sale or to the transactions being to avoid trouble relative
sell the subject of insurance or any part to taxes on merchandise. Held, that there was thereof
or if the subject of insurno "change or diminution in the interest, title, or possession" of the property insured, within
ance or any part thereof be or become incumthe meaning of a forfeiture clause in the pol
bered by mortgage,
or if any change icy, since no interest passed and no possession or diminution, other than by the death of or right of possession was given, and the par- the insured, take place in the interest, title ties did not intend any such change. (Ed. Note.--For cases in point, see Cent. Dig.
or possession of the subject of insurance, vol. 28, Insurance, 88 795–800.)
or if any other person than the in2. SANE-QUESTIONS FOR JURY.
sured now have or shall thereafter acquire Where the evidence showed that there was any interest in or lien on the property hereby no consideration for the deed or mortgage, the insured or any part thereof." Subsequent to presumption arising from the recitals of con
the issuance of the policy, and before the fire, sideration was not sufficient to raise such a
the pla substantial conflict in the testimony as to take
tiff executed a warranty deed to his the case to the jury on the question of con- sister, Mrs. E. F. Gates, conveying the real sideration.
estate on which the insured buildings stood, 3. SAUE-CHANGE OF USE AND OCCUPANCY- and for an expressed consideration of $3,000. EFFECT.
This deed was recorded, and the record title A change in the use and occupation of insured premises will avoid a policy where it is
remained in Mrs. Gates until a short time beso stipulated.
fore the fire. On the same day that the (Ed. Note.--For cases in point, see Cent. Dig. plaintiff conveyed the land to Mrs. Gates, he vol. 28, Insurance, $ 751.)
executed to the First National Bank of Win4. SAME — PLEADING —"VACANCY"_“Nonoc
dom, Minn., a mortgage on the insured propCUPANCY. In an action on an insurance policy provid
erty, purporting to secure a note of $2,000, ing that it was to become void if the buildings
and the deed to Mrs. Gates was made subject became vacant or unoccupied, the answer al- to this mortgage. This mortgage was also leged that the possession and occupancy of the recorded. At the time the deed to Mrs. Gates buildings described and of the insured premises was changed, and said premises ceased to be
was prepared for the signature of the plainoccupied as provided in the policy. Held, that tiff, a deed from her to the plaintiff reconthe answer was sufficient to raise the question veying to him the land was also prepared. of a vacancy, for the terms "vacancy” and “non
Mrs. Gates was not present when these deeds occupancy". are used interchangeably and are equivalent in meaning.
were drawn, but the plaintiff had told her (Ed. Note. For cases in point, see Cent. Dig. that he wished to place the title in her name Fol. 28, Insurance, $8 1618, 1636.
for the purpose of avoiding trouble relative For other definitions, see Words and Phrases, to taxes on merchandise and to take a deed Fol. 8, pp. 7254–7263, 7826.]
back from her, and she had consented to the ar5. SAYE-QUESTIONS FOR JURY_VACANCY.
rangement. The deed to Mrs. Gates was first Whether certain premises were vacant with. in the meaning of an insurance policy held un
executed and was then delivered by the plainder the evidence for the jury.
tiff to his brother with instructions to have (Ed. Note.-For cases in point, see Cent. Dig. it recorded. It was recorded and was never vol. 28, Insurance, g 1740.)
in the physical possession of Mrs. Gates. 6. SAME — EFFECT OF VACANCY - STATUTORY The deed from Mrs. Gates to the plaintiff PROVISIONS-BURDEN OF PROOF.
was then taken to her home, where it was Under the express provisions of Code 1897, $ 1743, providing that stipulations referring to
executed and delivered to the plaintiff. The vacancy of insured premises shall not be chang
bank knew nothing about the execution of the ed or affected by the provision that conditions mortgage until after it was made, when the or stipulations in the application or contract of plaintiff disclosed the fact to one of its offiinsurance making the policy void before loss shall not prevent recovery by the insured if it
cers and asked him to answer any inquiry be shown by plaintiff that failure to observe about it by saying that it belonged to a client. such provision or the violation thereof did not The plaintiff did not owe the bank, and it contribute to the loss, an insurance company is
never had possession of the mortgage. These under no obligation to prove that a change of occupancy or use in violation of the policy made facts were testified to positively by uncontrathe risk more hazardous.
dicted witnesses, and, aside from the pre
sumption arising from the recitals of the instruments themselves, there is nothing in the record indicating different conditions. Three defenses to recovery were interposed, as follows: (1) A change in the title and ownership of the insured buildings; (2) the buildings were incumbered by the mortgage made by the plaintiff to the bank; and (3) the premises were not at the time of the fire occupied and used as stated and warranted in the application and in the policy.
It was clearly the intention of the plaintiff and Mrs. Gates that the latter should take and hold the record title for the purpose of assisting the plaintiff to escape a possible lien on the property for taxes, and it was just as clearly their intention that no real change in interest or in title should take place by virtue of the transaction. There was therefore no actual diminution of interest or title because the parties did not so intend. Title to real estate may, of course, be acquired and lost by several methods; but, however acquired, one of the essentials ordinarily requisite to a good and perfect title is the right of possession, and a change for diminution "in the interest, title, or possession" must of necessity confer on the grantee something more than a mere paper title. In other words, to work such a change or diminution some right must in fact be conveyed. There was nothing of the kind here. No interest was in fact transferred, and no possession or right of possession was in fact given. It is generally held that the object of the provision against a change in the title or ownership of the insured property is that the insured shall have no greater motive to destroy the property or less interest in protecting it. In Ayers v. Insurance Co., 17 Iowa, 176, 85 Am. Dec. 553, it is said: “The object of the insurance company by this clause is that the interest shall not change so that the assured shall have a greater temptation or motive to burn the property, or less interest or watchfulness in guarding and preserving it from destruction by fire. Any change in or transfer of the interest of the assured in the property of a nature calculated to have this effect is in violation of the policy. But if the real ownership remains the same, if there is no change in the fact of title, but only in the evidence of it, and if the latter change is merely nominal, and not of a nature calculated to increase the motive to burn, or diminish the motive to guard the property from loss by fire, the policy is not violated.” See, also, Ayers v. Insurance Co., 21 Iowa, 185; Weigen v. Insurance Co., 104 Iowa, 410, 73 N. W. 862. In the latter case a mortgage on the property had been given, but it was afterwards, and before the fire, satisfied of record and returned to the mortgagor. It was held that it did not invalidate the policy, which contained a provision against incumbrance. It was said: “The mortgage did not affect any interest the plaintiff had in the property, and could not have been enforced by his brother. The
moral bazard was not increased by it. The incumbrance to avoid a policy must be valid, not merely nominal, and such as would have a tendency to create or increase temptation or motive for the destruction of the property, or decrease the owner's interest in guarding and preserving it.” On the same point, see, also, Olmstead v. Insurance Co., 24 Iowa, 503. While none of these cases presented facts exactly like those involved in this case, the principle involved was the same, and they are clearly authority for the appellee herein. See, also, German Ins. Co. v. Gibe, 162 Ill. 251, 44 N. E. 490; Kyte v. Insurance Co., 144 Mass. 43, 10 N. E. 518; Schloss & Kahn v. Insurance Co., 141 Ala. 566, 37 South. 701, 109 Am. St. Rep. 58.
The rule of the cases cited also disposes of the 'appellant's contention relative to the mortgage to the Windom bank. The appellant says, however, that the law presumes that the consideration recited in the deed and in the mortgage was the true consideration, and that such presumption raised a conflict in the evidence which should have taken the case to the jury on those two questions. There was no conflict in the testimony of the witnesses on these questions, and we think there can be no possible question as to the true nature of the transactions. The mere presumption arising from the recitals should not therefore be held sufficient to raise a substantial conflict in the evidence. If it was not conclusively shown that the premises were not at the time of the fire occupied and used as stated in the application and policy, it was at least a question of fact for the jury, as was also the question whether facts were proven which would constitute an estoppel on the part of the appellant. There was evidence tending to show that when the application was made, and when the policy was issued, the premises were occupied substantially as stated in the application, and that at the time of the fire they were vacant. A change in the use and occupancy of insured premises will avoid the policy where it is so stipulated. Limburg v. Insurance Co., 90 Iowa, 709, 57 N. W. 626, 23 L. R. A. 99, 48 Am. St. Rep. 468. And under the record in this case it was error not to submit this question of change and the question of estoppel to the jury.
The plaintiff seeks to avoid this conclusion by the contention that the answer pleaded a change of occupancy, as distinguished from a vacancy which the evidence tended to show, The defendant pleaded that after the issuance of the policy "the possession and occupancy of the buildings described therein and of said insured premises was changed, and said premises ceased to be occupied in fact as provided in the policy.” The policy provided that it was to become void if the buildings became vacant or unoccupied. The pleading was sufficient. "The terms vacancy and nonoccupan. cy are used interchangeably and as equivalent in meaning." Limburg v. Insurance Co.,