Effect of Making Loss Payable to a Third Party. the insurer of the amount of encum-ing him as trustee, by a condition declarbrances on the property, and the policy ing the policy void if the insured is not is issued by the company with such knowledge, a condition against such encumbrances is waived. *Gould v. Dwelling House Ins. Co., 134 Pa. 570; 47 Phila. Leg. Int. 335; 26 W. N. C. 168; 19 Atl. Rep. 793. the sole and unconditional owner, where no representations were made by the latter, and its agent, before the issuing of the policy, was fully informed as to the title, although he was the son of the insured and deceived the company as to the condition and title of the property. *Cross v. National F. Ins. Co., 43 N. Y. S. Rep. 482; 30 N. East. Rep. 390; 132 N. 140.- Where all the facts concerning the title to property to be insured are fully stated to the agent of the insurance company, who inserts in the application Y. 133. or policy statements inconsistent with his information and untrue, the company cannot defeat a recovery because of such untrue statements. *Phonix Ins. Co. v. Whiteleather, 34 Ill. App. 60. 141.— Insurance agents who deliver to the assured a policy of fire insurance and receive the premium from him may waive conditions of the policy against encumbrances, although the company is ignorant of the existence of the agents, and the dealings of the latter with it have been entirely through the secretary of another company, and they have attended to insuring the property for the assured by placing the insurance in such companies as they deemed proper. *Lyon v. Dakota Ins. Co., 6 Dak. 67. 142. Recovery may be had upon a fire insurance policy, notwithstanding encumbrances upon the property forbidden by the policy, where there was no written application for the policy and explicit and definite notice of such encumbrances was given to the local agent of the company; the knowledge of the agent in such case being the knowledge of the company. *Gristock v. Royal Ins. Co., 84 Mich. 161; 47 N. W. Rep. 549; aff'd, 49 N. W. Rep. 634. 143.- Where an assured correctly states to the soliciting agent all the circumstances under which property is owned or held by him, any error or neglect on the part either of the agent or company in stating the title or interest of the assured will not avoid the policy. *Burson v. Philadelphia F. Asso., 136 Pa. 267; 20 Ins. L. J. 144; 26 W. N. C. 408; 20 Atl. Rep. 401. 145. A misrepresentation of the interest of the assured in the property insured is waived where he, after the issuance of the policy, states the facts to the person who delivered the policy to him and received his premium, and requests that the true condition of the title be indorsed upon the policy, and is informed that it is all right, and the policy is redelivered to him, and there is no offer to return the premium or cancel the policy on the part of the company. *East Texas F. Ins. Co. v. Crawford, 16 S. W. Rep. 1,068; 21 Ins. L. J. 39 (Tex.) 146. The issue of a policy by a general agent to one who informed him that he was to have the property, which belonged to his son, as a home for life, is a waiver of a condition that it shall be void if the assured is not sole owner, although it provides that no agent has power to waive any condition. *Berry v. American C. Ins. Co., 43 N. Y. S. Rep. 400; 21 Ins. L. J. 455; 30 N. East. Rep. 254; 132 N. Y. 49. 147. Effect of making loss payable to a third party. An indorsement on the policies that the loss would be paid to those holding encumbrances, is notice of the encumbrances; and the neglect of the agent to inform the company is the misfortune of the latter. Ins. Co. of N. A. v. McDowell, 50 Ill. 120. 148. The fact that a woman's husband will have a curtesy in her estate does not render her title other than absolute ownership, so as to be required to be set forth in the policy, a clause of which required disclosure if the interest of the assured was not an absolute ownership. A trust deed had been made to one Greene144.- An insurance company is not re- | baum. Held, a writing on the policy, lieved from liability upon a policy to a "loss, if any, payable to Greenebaum, person not the owner, but having an in-trustee, as his interest may appear," consurable interest in the property, describ-veys a sufficient disclosure of all the facts. Effect Describing Insured as Superintendent-Waiver. Commercial Ins. Co. v. Spankneble, 52 149.- The provision as to sole and unconditional ownership is waived by the company indorsing “loss, if any, payable to A. according to his interest." Lewis v. Council Bluffs Ins. Co., 13 Ins. L. J. 557; 63 Iowa, 193. 150.- A mortgagee obtaining a policy of his own motion with loss payable to him, but in terms insuring "estate of "it would make no difference; "it was all right." Held, a waiver of the condition amounting to an estoppel in pais, upon the company Franklin v. Atlantic F. Ins. Co., 42 Mo. 456. 153.- Where a husband erects a dwelling on his wife's lot, and with her occupies it, and as her agent effects an insurance for their mutual benefit, though in his own name, and company, aware of these facts, issues the policy and receives -," is not bound to inform the com- the premium, he may recover on policy pany that he holds an unsatisfied judg-in case of loss. Am. Cent. Ins. Co. v. ment in foreclosure. *Weed v. Hamburg | McLanathan, 11 Kans. 533. Bremen Ins. Co., 21 Ins. L. J. 577; 31 N. East. Rep. 231; 133 N. Y. 394; aff'g 61 Hun, 110; 15 N. Y. Supp. 429; 39 N. Y. S. Rep. 638. 154.- If assured correctly states his interest in property at time he obtains the insurance, it operates as a waiver of the condition requiring it to be stated in 151. Effect describing insured as policy of any other or less than absolute superintendent. Policy insured "George ownership. Bredow v. Erie Co. Mut. Mark, superintendent,” in fact, the prop-Ins. Co., 13 N. Y. Weekly Dig. 211. erty belonging to several persons, five in the person to whom loss is made payable, even if there is no title in the former. Folsom v. Orient Fire Ins. Co., 59 N. H. 54; 13 Ins. L. J. 175. It should be noted that this case was decided on question of insurable interest. 155. If policy is issued with knowlnumber, who owned certain definite shares, edge on part of the company as to the Mark owning fourteen-forty-eights. true state of the title, a suit may be mainMark had for several years been superin-tained by the assured for the benefit of tendent and had charge of the boat insured. The agent who issued the policy knew that Mark was not the owner. Policy contained the usual condition providing that if the interest of the assured was not the absolute ownership, it should be so represented and stated in the policy, otherwise it should be void. Held, that the description in the policy of Mark as superintendent was a plain indication that he was not the absolute owner, and under such circumstances, it must be assumed that the insurance was intended for the benefit of the real owners, just as if the policy had been issued to a person describing him as agent. Mark v. National Fire Ins. Co., 24 Hun, 565; aff'd 91 N. Y. 663, on opinion below. 152. Waiver. No written application was required. The policy was conditioned to be void for any misrepresentation, and that if the interest of assured be any other than the entire unconditional and sole ownership it must be so represented to the company, and so expressed in the policy, otherwise the policy shall be void." Plaintiff only owned an undivided half in the property and this was incumbered. The plaintiff had explained this to the agent having authority to draw up and issue policies, who said, 156.- Issue of policy with knowledge on part of company of existence of an encumbrance operates as a waiver of forfeiture. Wilson v. Minnesota Farmers' Mutual Fire Ins. Assoc., 16 Ins. L. J. 600; 36 Minn. 112. 157.- A company, by receiving the premium with full knowledge of the true state of title, is estopped from denying the right of the insured to recover, on the ground that his interest is other than the entire, unconditional, and sole ownership; and in such case the knowledge of the agent is the knowledge of the company. Liverpool & L. & G. Ins. Co. v. Ende, 65 Tex. 118. 158.- If an insurance company insures the owner of a life estate only as having an absolute title, with knowledge of the facts, and demands and receives premiums for insuring the entire ownership, it must pay the policy to the same extent as if the assured owned the fee. *Western Assur. Co. v. Stoddard, 88 Ala. 606; 7 So. Rep. 379. Evidence. 159. A policy insuring a building to 1,005; McCormick v. Springfield Ins. Co., an amount not exceeding the applicant's Id. 1,005 (Cal.) interest thereon, which is truly described in a verbal application, is not avoided by the fact that he is not the sole and unconditional owner, by reason of a clause declaring it void in such case. *Hoose v. Prescott Ins. Co., 11 L. R. A. 340; 84 Mich. 309; 47 N. W. Rep. 587; 20 Ins. L. J. 506. 164. Evidence. Parol evidence, or testimonial proof, will not be received to show that, in case of a donation of a house and lot by authentic act, it was agreed that the donor should continue to receive, and enjoy during his lifetime, the rents of the property. Macarty v. Commercial Ins. Co., 17 La. 365. 165.- Possession and acts of ownership are prima facie evidence of ownership. Kansas Ins. Co. v. Berry, 8 Kans. 159; S. P. Franklin Fire Ins. Co. v. Chicago Ice Co., 36 Md. 102. 160.— A provision in a policy of insurance, that the policy shall be void if the assured is not the sole and unconditional owner of the property insured, or if the interest of the owner is not truly stated in the policy, or if any change takes place 166.- Policy provided that "if the inin the title, interest, location, or posses-terest of the assured be any other than sion of the property without consent of the entire, unconditional, and sole ownerthe company indorsed on the policy-ship, for use and benefit of assured, . . . applies only to such changes as arise after it must be so represented and expressed the delivery of the policy in the owner-in policy, otherwise it should be void. ship of the property, and not to an exist- Defendant offered to prove that grantors ing state or condition of the property at of plaintiff's grantor were only entitled to the time the policy was issued, except as an easement in the property. Evidencematerial facts were misstated or con- was excluded. Held, no error; that offer cealed. Id. was only in substance to prove a defective title. The condition in question refers to extent of the insurable interest of plaintiff, and not to validity of his title. So long as he had, under claim of right, exclusive use and enjoyment of the insured property, without any assertion of an adverse right or interest in it by any other person, he was the owner of the property. Miller v. Alliance Ins. Co., 7 Fed. Rep. 649. 161.- A policy of insurance, void for any change of interest in the property insured, issued upon the interest of the person holding lands under a contract of purchase, is avoided by a mortgage given by the vendor if the interest of the vendee is thereby affected; but if such mortgage creates no obligation upon such vendee for its payment, her interest and the policy upon it remain unaffected by the mortgage. Id. 162.- Waiver of forfeiture for nonoccupation of insured property is not a waiver of the objection that the legal title is not owned by the insured, where this fact is not then known to the insurer. *Trott v. Woolwich Mut. F. Ins. Co., 83 Me. 362; 22 Atl. Rep. 245. 167. At the trial of an action upon an insurance policy, upon the question of notice to the company of an encumbrance on the property, appellant company offered in evidence a written report, by its agents, of the risk, made to the company, in which it is represented that the property proposed to be insured was un163. That an insurance company, incumbered; but as it was not made a after becoming aware that the insured part of the transaction with appellee, was not the absolute owner of the prop- relating to the insurance, it was no part erty as represented by him, requested the of the res gesta, and was properly exlatter to produce his books, together cluded. Phoenix Ins. Co. v. La Pointe, with the uninjured property after the 5 West. Rep. 512; 118 Ill. 384; affg 17 fire, as provided in the policy, does not Brad. 248. amount to a waiver of the right to insist 168. Where defendant, to rebut the upon forfeiture because of such misrep-evidence of title claimed under a deed, resentation. *McCormick v. Orient Ins. Co., 24 Pac. Rep. 1,003; 86 Cal. 260; McCormick v. Union Ins. Co., 24 Pac. Rep. offered to prove that such deed had never been delivered, and never had any legal effect, and that it was placed in the hands General Rules. of plaintiff's brother, to be held and kept | Rousseau v. Royal Ins. Co., 1 Mont. by him during the life of their parents, Supr. 395 (Can.) and after their death to be delivered to plaintiff only on proof of performance of a certain condition, it was proper for defendant to inquire of plaintiff, on crossexamination, for what purpose the deed was put into his brother's hands. Pangborn v. Continental Ins. Co., 5 West. Rep. 579; 16 Ins. L. J. 62; 62 Mich. 638. 169.- Refusal to admit evidence of defendant, in an action upon a policy taken out by a married woman, that the property insured belonged to her husband, is reversible error. Reithmueller v. Philadelphia Fire Asso., 2 West. Rep. 562; 20 Mo. App. 246. 173.- Where a fire insurance policy declares the statement of its holder as to the condition of his title to the property to be a warranty, he has the burden, in an action on the policy, to prove that his statements as to his title were true. Williamson v. New Orleans Ins. Asso., 84 Ala. 106; 4 So. Rep. 36. 174. Cross references. Section one. Subd. II. Parties or persons insured. Subd. XI. Entirety and divisibility. Subd. I. Measure of damage. No. 21. Concealment. No. 20. 170. Other special cases. A deed which has been made and recorded by the assured in his lifetime is only prima facie evidence of delivery, it may be and is rebutted by the facts that the grantee never knew that the deed was executed; never acted under it and never expected to; that all the parties treated the prop-22, 39, 42. erty as though deed had never been executed, and assured had continued to occupy it for a long series of years, and that deed was not among the papers of the grantee. Walsh, Admx., v. Vermont Mutual Fire Ins. Co., 11 Ins. L. J. 530; 54 Vt. 351. Materiality. Nos. 9, 16, 17, Subd. IV. Statement of interest. Nos. 6 et seq. Section five. Subd. IX. Change in interest. 215a, 273a, 300a. Section nine. Warranty. Nos. 71, 77, Nos. 98, 117, 118, 119, 121, 123, 129, 133, 138, 140, 142, 149, 154, 160, 168, 175, 187, 209, 210, 218, 226, 229, 230, 231, 234, 250, 273, 274, 278, 288, 292, 294, 339, 353, 361, 369, 371, 376, 413, 445. 171.- Plaintiffs bought premises and gave a mortgage back to the grantor who agreed to pay off a small prior mortgage. Plaintiffs took insurance on the premises, representing that the only mortgage thereon was that given by them to their grantor. Held, that in equity, though not in form, there was a true disclosure of the title, and that the court would not VI. permit the company to avoid the policy for mere technical defects. Ring v. Windsor, etc., Ins. Co., 54 Vt. 434. 172.- Where no fraud is practiced or intended to be practiced, the title of one in possession under deed held in escrow for the purchase money is good, and is in compliance with the stipulation or representation of ownership made in the application for insurance. Lingenfelter v. Phoenix Ins. Co., 1 West. Rep. 695; 19 Mo. App. 252. 172a. A wite can not validly insure in ner own name household furniture without the authorization of her husband. Section ten. Agent. Nos. 286, 317. GROUND Presumption from possession. scription and condition. Leased ground. As affected by acts or knowledge of agent. Waiver. Cross references. 1. General rules. Where charter provided that "if assured have a less estate General Rules. 6. A defense of want of title in fee simple is sustained by the facts that the deed was delivered to a third party to hold until performance by insured of some condition which is unperformed. Pangborn v. Continental Ins. Co., 16 Ins. L. J. 62; 5 West. Rep. 579; 62 Mich. 638. than fee simple, or if the premises be incumbered, policy may be void, unless the true title of the assured and the encumbrances on the premises be expressed therein," and assured described himself in the application, as "owner of the buildings," and the company had no other notice of his title, and it appeared 7. In an action upon a policy of inthat he was a tenant by curtesy only;|surance, where the defense was the genthe policy is void. Leathers v. Ins. Co., eral issue and notice that, in the applica4 Fost. 259 (N. H.) tion for insurance, plaintiff represented that he was the owner in fee simple of the property, and also represented the amount of the encumbrances thereon, the defendant must confine himself to the fraud or falsehood alleged in his notice. Id. 8. If insured is an owner in fee of only an undivided interest in the land, he cannot recover upon a policy which provides that "if the assured be not the owner by title in fee simple, and this fact is not expressed in the written portion of the policy," it shall be void. Scottish U. & Nat. Ins. Co. v. Petty, 21 Fla. 399. 2. Two partners, in an application for insurance, which was required to contain “a full, fair, and substantially a true representation of all the facts and circumstances respecting the property, so far as they are within the knowledge of the assured, and are material to the risk,” stated that they owned the land on which the building to be insured stood. In fact, one of them, to whom the policy was made payable, owned it, and the other was charged on their books with half its cost. The partnership was afterwards dissolved, and all that owner's in- 9.- Where a deed to a firm operates to terest in its assets transferred to his co-convey the title to one partner alone, a partner, to whom the insurers, with policy issued to the latter on his represennotice of the facts, agreed that the policy tation that he is the owner in fee is valid. should "stand good." Held, that the in- |* Weber v. American C. Ins. Co., 35 Mo. surers were liable for a loss by a subse-App. 521. quent fire. Collins v. Charlestown Mut. Fire Ins. Co., 10 Gray, 155 (Mass.) 10.- Persons having the sole beneficial ownership of premises, although a mere 3. The existence of a mortgage does naked legal title is outstanding in execunot make false a representation by the as-tors, are entitled to enforce a policy of insured that he held the title in fee simple.surance taken by them, although they did White v. Agricultural Ins. Co., 22 Up. not state the facts as to the title, and the Can. C. P. 98. policy requires such statement if the interest of the assured is other than an absolute fee simple title. *Phoenix Ins. Co. v. Bowdre, 67 Miss. 620; 19 Ins. L. J. 916; 7 So. Rep. 596. 4.- Company defended upon ground that the building insured was erected on land of another on which assured was a trespasser, and that facts material to the risk were concealed. It appeared that 11.- A representation by an assured the assured entered upon the land and that he has a fee simple title to the inobtained the insurance under a reason-sured property means that he holds under a able and honest belief that he had title, and conveyance purporting to invest him with that he did not withhold the knowledge of a dispute about his title in bad faith. Held, that plaintiff was entitled to recover. Monroe County Mutual Ins. Co. v. Robinson, 7 Ins. L. J. 636; 5 W. N. C. 389 (Pa.) 5. It seems that a life estate may be represented as a fee simple without voiding the insurance, upon ground of immateriality. Haden v. Farmers' and Mechanics' Fire Ins. Co., 15 Ins. L. J. 497; 80 Va. 683. a fee simple estate as distinguished from any limited or inferior one; and his recovery will not be defeated by the fact that he does not produce evidence of legal title in himself. *Capital City Ins. Co. v. Caldwell, 10 So. Rep. 355 (Ala.) 12.- A stipulation in a fire policy that it shall be void if the building is on leased ground, unless the company's consent is given in writing, is a warranty by the assured, and cannot be ignored. * East |