In Miller v. Alliance Ins. Co., 18 Blatch. 308, the court held that so long as insured under claim of right had the exclusive use and enjoyment of the property without any assertion of an adverse right or interest by any other person, he was the owner of the property.

Where the buildings are owned by one partner, the partnership is not the sole and unconditional owner within the meaning of the policy.

Citizens' Fire Ins. Co. v. Doll, 35 Md. 89.

In Reaper City Ins. Co. v. Brennan, 51 Ill. 158, the court holds that when property has been sold on a judgment and execution against the insured, the title of the property can not be said to be "entire, unconditional and sole".

Where the buildings are owned by one partner, the partnermoney and taxes, he is not the sole and unconditional owner of the property within the meaning of the policy.

Hinman v. Hartford Fire Ins. Co., 36 Wis. 159.

And so, where the insured is in possession under a verbal gift and promise to convey, and has paid taxes and made improvements, he is not the absolute, sole and unconditional owner. Wineland v. Security Ins. Co., 53 Md. 276.

The owner of an undivided interest is not the sole and unconditional owner of the property.

Miller v. Amazon Ins. Co., 43 Mich. 463; 10 Ins. L. J. 1081. In Iowa it is held that a life estate is not an absolute interest. Davis v. Iowa State Ins. Co., 67 Ia. 494; 15 Ins. L. J. 533. Garver v. Hawkeye Ins. Co., 69 Ia. 202.

A surviving partner, who is also the administrator of the deceased partner's estate, is not the unconditional and sole owner of the partnership property; nor is he made so by the fact that he has paid the firm debts out of his own means and is entitled to be reimbursed out of such property.

Crescent Ins. Co. v. Camp, 71 Tex. 503.

From a study of the foregoing cases, it appears that insured is not required to be the holder of both the equitable and legal title to the insured property in order to be considered the unconditional and sole owner of the property. It is sufficient if he holds the equitable title.

If the subject of insurance be a building on ground not owned by the insured in fee simple.

An estate in fee simple is the largest estate in land known to the law. It is an estate of inheritance, unlimited in duration. The owner has full power of disposal of it during his life; and on his death, if undisposed of, it goes to his heirs.

Am. and Eng. Enc. of Law.

This provision speaks for itself, and is meant to cover those cases where buildings are erected upon ground to which the insured has neither the legal nor equitable title. I do not find

that this clause has ever been construed except in connection with the clause concerning unconditional and sole ownership.

If the subject of insurance be personal property and be or become encumbered by a chattel mortgage.

This provision is a valid one, and if the property is incumbered by chattel mortgage at the time the policy is issued, the failure of the insured to disclose such mortgage avoids the policy.

Crikelier v. Citizens' Ins. Co., 168 Ill. 309.

Shaffer v. Milwaukee Mechanics Ins. Co., 17 Ind. App. 204.

A mortgage that has been paid, although not discharged of record, is not an incumbrance within this provision of the policy. New Orleans Ins. Ass'n v. Holburg, 64 Miss. 51. Lang v. Hawkeye Ins. Co., 74 Iowa 673.

The fact that the mortgage is recorded as required by law, and that the law provides that such recording shall be notice of the existence of a mortgage, does not excuse the insured from giving notice thereof.

Wicke v. Iowa State Ins. Co., 90 Ia. 4.

A material increase of an existing mortgage without notice to the company, is a violation of this provision and avoids the policy, though the company had notice of the original mortgage. Kansas Farmers' Fire Ins. Co. v. Saindon, 53 Kans. 623.

In Crook v. Phoenix Ins. Co., 38 Mo. App. 582, the incumbrance was $110 more than insured stated it to be. The court holds that this avoids the policy. Upon this same point, see Smith v. Agricultural Ins. Co., 118 N. Y. 518.

Where a stock of goods is incumbered by a chattel mortgage, such mortgage applies to subsequently acquired goods added to the stock, so as to vitiate the policy as to these.

Gray v. Guardian Assur. Co., 31 N. Y. Supp. 237.

Where an existing mortgage of which the company has notice is renewed, or a new mortgage executed with which to secure money to pay off such existing mortgage, there being no increase in the amount of the incumbrance, such renewal or new mortgage will not avoid the policy.

Dougherty v. German-American Ins. Co., 67 Mo. App. 526.
Koshland v. Home Ins. Co., 31 Ore. 321.
Lycoming Fire Ins. Co. v. Ward, 90 Ill. 545.

In Johansen v. Home Fire Ins. Co., 54 Neb. 548, the court holds that the execution of a mortgage after the issuance of a policy would not avoid the insurance if such mortgage was paid off before the loss.

The rules deducible are (1) that the existence of an undisclosed chattel mortgage avoids the insurance; (2) that any material difference in the amount of the mortgage over and above

that stated by the insured, will avoid the policy; and (3) that a mere change in the incumbrance, as by renewal of an existing mortgage or the execution of a new mortgage which does not materially increase the amount of the original incumbrance, will not avoid the insurance.

If, with the knowledge of the insured, foreclosure proceedings be commenced, or notice given of sale of any property covered by this policy by virtue of any mortgage or trust deed. Under this provision it has been held that the policy becomes void immediately on the commencement of foreclosure proceedings, without any act or notice on the part of the company.

Meadows v. Hawkeye Ins. Co., 62 Ia. 387; 13 Ins. L. J. 377. Quinlan v. Providence-Washington Ins. Co., 15 N. Y. Supp. 317; 133 N. Y. 356.

The fact that the company assents to the mortgage can not be extended by construction so as to include the foreclosure proceedings as a necessary incident of the mortgage.

Titus v. Glens Falls Ins. Co., 81 N. Y. 410.

Where, however, the policy is issued to the mortgagee, it is held that foreclosure proceedings by the mortgagee and the acquiring by him of the complete title to the property under such proceedings does not avoid the policy.

Esch v. Home Ins. Co., 78 Ia. 334; 19 Ins. L. J. 113.
Weiss v. American Fire Ins. Co., 23 Atl. 991.

In Fitzgibbons v. Merchants and Bankers' Mut. Fire Ins. Co. (Ia.), 101 N. W. 454, the policy insured both real and personal property. There was a mortgage on the real property, and suit to foreclose same had been instituted before the loss. The court, in holding that the foreclosure proceedings did not avoid the policy, says: "The condition of forfeiture which this policy provides is the institution of foreclosure proceedings against the 'property insured'." The "property insured" consists in part of the dwelling house covered by the mortgage and in part of personal property to which no mortgage or other lien has ever attached; and the foreclosure proceedings did not, therefore, involve the property insured, and no forfeiture resulted.

If any change, other than by the death of an insured, take place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or judgment or by voluntary act of the insured, or otherwise.

Under the New York standard form of policy, the death of the insured does not affect the policy, and it is not necessary to give any notice to the company of the death of the insured. Quarles v. Clayton, 87 Tenn. 308; 10 S. W. 505.

Under other forms of policies the death of the insured may avoid the policy in the absence of notice to the company.

Sherwood v. Agricultural Ins. Co., 73 N. Y. 447.

Hine v. Woolworth, 93 N. Y. 75.

In Illinois it has been held that where the policy is payable to "A, his executors, administrators or assigns," the death of the insured did not avoid the policy, although the company has no notice of the change.

Forest City Ins. Co. v. Hardesty, 182 Ill. 39.

Forest City Ins. Co. v. Eaton, 86 Ill. App. 463.

Under this condition, an absolute sale of the insured property will, of course, void the policy, as the insured would no longer have an insurable interest in the property.

The proper construction of this clause, where the insured retains some insurable interest in the property, is not so easy of solution, and there is some conflict in the authorities. In some States it is held that the execution of a mortgage of the insured property does not effect a change in the interest, title or possession.

Taylor v. Merchants and Bankers' Ins. Co. (Ia.), 21 Ins.
L. J. 117.

A sale by one partner to another of his interest in the partnership property has been held not to conflict with this clause in the policy so as to avoid the interest of the purchasing partner in the property.

Allemannia Fire Ins. Co. v. Peck, 133 Ill. 220.

Hobbs v. Memphis Ins. Co. (Tenn.), 1 Sneed 444.
Burnett et al. v. Eufaula Home Ins. Co., 46 Ala. 11.
West v. Citizens' Ins. Co., 27 Ohio St. 1.

Virginia F. and M. Ins. Co. v. Vaughan, 14 S. E. 754.
Lockwood v. Middlesex Ins. Co., 47 Conn. 553.

N. O. Ins. Ass'n v. Holberg, 64 Miss. 51.

To the contrary are the following cases:
Dreher v. Ætna Ins. Co., 18 Mo. 128.

Finley v. Lycoming Ins. Co., 30 Pa. 311.

Dix v. Mercantile Ins. Co., 22 Ill. 272.

Malley v. Atlantic Fire Ins. Co., 51 Conn. 222; 13 Ins.

L. J. 38.

Hathaway v. State Ins. Co., 64 Iowa 229.

My own opinion is that a conveyance by one partner of all his interest to another partner does effect a change in interest and title within the meaning of the policy, and that the policy is avoided thereby.

The following have been held to be within the meaning of this clause:

Possession by sheriff under execution.

St. Paul F. and M. Ins. Co. v. Archibald, 16 Ins. L. J. 153.
A lease of insured premises.

Wenzel v. Commercial Ins. Co., 67 Cal. 438; 14 Ins.
L. J. 809.

Smith v. Phoenix Ins. Co. (Cal.), 23 Pac. 383.
Fire Ass'n v. Flournoy (Tex.), 19 S. W. 793.
Execution of mortgage with power of sale.
Sessaman v. Pamlice Ins. Co., 78 N. C. 145.
Schumitsch v. American Ins. Co., 48 Wis. 26.

Foreclosure of mortgage.

Commercial Union Assur. Co. v. Scammon, 102 Ill. 46; 11
Ins. L. J. 578.

Execution of mortgage.

East Texas Fire Ins. Co. v. Clarke, 79 Tex. 23; 20 Ins.
L. J. 820.

Contract for sale of property, and receipt of part of purchase

price.

Germond v. Home Ins. Co. (N. Y.), 2 Hun. 540.

Transfer of equitable title to property.

Cottingham v. Fireman's Fund Ins. Co., 20 Ins. L. J. 187.

The following are held not to be within this clause in the policy:

Temporary absence of occupants of dwelling.

Shearman v. Niagara Fire Ins. Co., 46 N. Y. 526.

Partial vacancy of house.

Bryan v. Peabody Ins. Co., 8 W. Va. 605.

Letting building to tenants.

Rumsey v. Phoenix Ins. Co., 17 Blatch. 527.

Alkan v. New Hampshire Ins. Co., 53 Wis. 136; 11 Ins.

L. J. 126.

Execution of mortgage.

Hartford Fire Ins. Co. v. Walsh, 54 Ill. 164.
Quarrier v. Peabody Ins. Co., 10 W. Va., 507.
Aurora Fire Ins. Co. v. Eddy, 55 Atl. 213.

Bryan v. Traders' Fire Ins. Co., 145 Mass. 389.

Chadbourne v. German-American Ins. Co., 31 Fed. 533; 16 Ins. L. J. 897.

Appointment of a receiver.

Keeney v. Home Ins. Co., 71 N. Y. 396.

Invalid sale of property.

Pitney v. Glens Falls Ins. Co., 65 N. Y. 6.
Kitterlin v. Milwaukee Ins. Co., 134 Ill. 647.

If this policy be assigned before a loss.

The contract of insurance is a personal contract with the insured, and the policy does not pass, so as to continue the liability of the company, to an assignee or purchaser of the property insured unless the company assents to the transfer. The company is not absolutely bound to consent to the transfer, but may withhold consent without giving any reasons therefor. Home Ins. Co. v. Lindsey, 26 Ohio St. 348.