In Wheeler v. Equitable Trust Co., 206 Pa. 428, 55 Atl. 1065, a policy agreed to indemnify the insured against any loss sustained by reason of defects or unmarketability of the title to the property, which was the subject of a mortgage. The policy excepted, however, defects, liens, and incumbrances specified in a certain schedule in which there were listed accuracy of description, taxes of 1898, water rent, building restrictions, and mechanics' liens not of record. This was followed by a clause which guarantied the completion of seventeen buildings free from liens from municipal improvements. The court held that the plainly expressed intent was to indemnify against loss from certain defects and incumbrances except those named in the schedule, and that the additional clause made an exception to the exceptions; that is to say, notwithstanding the exceptions, the general indemnity contract should extend to and cover any loss which arose under the guaranty in the additional clause. Similarly, in Fidelity Insurance, Trust & Safe Deposit Co. v. Earle, 23 Pa. Co. Ct. R. 449, the insurer agreed to indemnify. the owner of certain property described for loss sustained by reason of certain liens or incumbrances, saving such liens or incumbrances as are excepted in a schedule annexed to the policy. That schedule enumerated specific liens, charges, or incumbrances "which do or may now exist, and against which the company does not agree to insure or indemnify." According to the construction of this clause adopted by the court, the schedule does not profess to set out all the incumbrances or liens which exist against the property, but only specifies those liens or incumbrances which it stipulates shall not be within the protection of the policy. Consequently, if any lien or incumbrance is omitted intentionally from the list, it is not to be inferred that such lien is apparently nonexistent. The inference goes no further than that the insurer, for reasons not disclosed, but sufficient to itself, is willing to assume the risk of any loss resulting to the insured because of the existence of such omitted lien or incumbrance. A policy issued to a mortgagee insuring against loss by defects or unmarketableness of the title or mortgage interest, or because of liens or incumbrances, charging the same at date of policy, "saving defects" or objections to title "which do or may now exist," including “unmarketability by reason of the possibility of mechanics' liens and municipal liens," but not "actual losses by reason of such liens," insures only against liens the rights to which are already inchoate at the date of the policy (Wheeler v. Real Estate Title In surance & Trust Co., 160 Pa. 408, 28 Atl. 849). So, where the policy insured plaintiff corporation against loss or damage by reason of defects of title affecting certain premises purchased by it, or by reason of liens or incumbrances charging the premises at the date of the policy, except that defects or incumbrances arising after date of the policy, or created or suffered by the insured, and assessments not confirmed at the date of the policy, were not covered by it, an assessment confirmed at the date of the policy was covered by it, since the policy was to be construed as covering incumbrances existing at its date, and not as a covenant of warranty broken before its date, when plaintiff took deeds and possession of the premises (Trenton Potteries Co. v. Title Guarantee & Trust Co., 64 N. Y. Supp. 116, 50 App. Div. 490). But the insurer was not liable for an assessment for a street opening which became a lien on one of the parcels three months after the insured had taken title thereto, it being the intent of the parties that the policy should only cover incumbrances existing at the time of the taking of the title (Trenton Potteries Co. v. Title Guarantee & Trust Co., 68 N. E. 132, 176 N. Y. 65). The stipulation in a title insurance policy that no right of action shall accrue thereon unless the assured has contracted to sell the land or the interest insured, and a court of last resort has declared the existence of a defect or incumbrance upon the title for which the company would be liable under the policy, does not apply where the land is held adversely, and the insured has lost it by reason of a defect in the insured title (Place v. St. Paul Title Insurance & Trust Co., 67 Minn. 126, 69 N. W. 706, 64 Am. St. Rep. 404). Under a contract agreeing to indemnify plaintiff if there should be a final judgment on a lien not excepted from the guaranty, the confirmation of an assessment by a municipal body, legally necessary to render the assessment a lien, is not a final judgment or decree on the lien (Taylor v. New Jersey Title Guarantee & Trust Co., 56 Atl. 152, 70 N. J. Law, 24). A policy of title insurance, insuring also against liens, provided that payment or discharge of the mortgage owned by the insured, except through foreclosure, should annul the policy. Thereafter, mechanics' liens in existence at the issuance of the policy were established, and the property sold under them, and subsequently the mortgagee foreclosed, and bought in the property for the amount due on his mortgage. It was held that the purchase at foreclosure sale was not a satisfaction of the mortgage, annulling the pol icy, and that the insurer was liable for the amount of the liens. (Minnesota Title Insurance & Trust Co. v. Drexel, 70 Fed. 194, 17 C. C. A. 56, 36 U. S. App. 50.) The statutory permission to plead performance of conditions generally does not, in its application to contracts of indemnity, extend to matters which constitute the very loss for which the insurer is to be answerable (Taylor v. New Jersey Title Guarantee & Trust Co., 56 Atl. 152, 70 N. J. Law, 24). The declaration must state facts showing specifically that loss had befallen the insured. in one or more of the modes designated in the policy (Taylor v. New Jersey Title Guarantee & Trust Co., 52 Atl. 281, 68 N. J. Law, 74). So, an averment in a declaration that A. purchased land at a tax sale, and ever since has lawfully held the land against insured, is not legally equivalent to an averment that insured was evicted under the title conveyed by such sale (Taylor v. New Jersey Title Guarantee & Trust Co., 56 Atl. 152, 70 N. J. Law, 24). A statement of claim that has the policy annexed, but not the application therefor, is defective where the policy refers to the appliplication for the description of the land. Hankey v. Real Estate Title Co., 11 Pa. Co. Ct. R. 320. (e) Other forms of guaranty insurance. A policy by which the insurer undertook to protect insured against loss by reason of mechanics' liens for work or material furnished K. "in and about the erection of the buildings" which he had contracted to erect for insured, and to "guaranty the completion of the buildings to be erected on the said lots under said contract," covers a loss by reason of an advance payment made by insured in accordance with the contract, K. having, after receiving it, abandoned the work (Union Trust Co. v. Citizens' Trust & Surety Co., 39 Atl. 886, 185 Pa. 217). B.B.INS.-209 2. EXTENT OF LIABILITY. (a) Employers' liability insurance. (b) Same-When liability accrues. (d) Fidelity insurance. (e) Credit insurance. (f) Title insurance. (g) Other forms of guaranty insurance. (a) Employers' liability insurance. The extent of the insurer's liability is, of course, commensurate with the liability of the insured. So, where the policy recited that it indemnified an employer against loss of life or injury to the person, whether to the insured, his employés, or any other person or persons, resulting from the explosion of boilers, "payable to the insured for the benefit of the injured person or persons or to their legal representatives in case of death" (Embler v. Hartford Steam Boiler Inspection & Insurance Co., 53 N. E. 212, 158 N. Y. 431, 44 L. R. A. 512), it was held that but one recovery could be permitted, and therefore, if the insured had paid a claim to the representatives of an employé based on negligence, no further right of action against the insurer existed. The company may limit its liability in respect of any one injury or its gross liability. Thus, in Rumford Falls Paper Co. v. Fidelity & Casualty Co., 92 Me. 574, 43 Atl. 503, a policy provided that the company's liability for an accident resulting in injury to or death of a person should be limited to $1,500, and subject to the same limit for each person, its gross liability for a casualty resulting in injuries to or death of several persons should be limited to $25,000. It was held that this policy did not relieve the insured from all responsibility for damages resulting from injuries to its employés, but it was devised with a view to apportion the responsibility between the insurer and the insured, and that consequently the insurer for any one accident was liable only to the extent of $1,500, though the judgment against the insured exceeded that sum. Nor did it affect the liability of the insurer that the injured employé had offered to compromise his claim for $1,000, which offer was refused by the insurer. The same principle as to the effect of an offer to compromise was asserted in New Orleans & C. R. Co. v. Maryland Casualty Co. (La.) 38 South. 89. In view of the provision relating to the settlement of claims and the right of the insurer to defend, if the insured notified the insurer that a liability had been incurred by reason of the injury, and the insurer did not avail itself of the provision in the policy allowing it to conduct the defense of the action, it was nevertheless the duty of the insured to make the loss as small as it reasonably could. (Southern Ry. News Co. v. Fidelity & Casualty Co., 83 S. W. 620, 26 Ky. Law Rep. 1217); but, if the insured compromised the claim in good faith and with reasonable prudence, the insurer was bound to pay the loss actually sustained, and the compromise could be taken into consideration as evidence of such loss. In New Orleans & C. R. Co. v. Maryland Casualty Co. (La.) 38 South. 89, a loss was compromised by the insurance company ex parte, the receipt and release being signed by the widow of the employé on her own behalf and also as tutrix of her minor child. As a matter of fact, she had not yet been appointed tutrix, and her release as to the child was unauthorized. It was held that the insurer was liable for the full amount of a judgment obtained by the tutrix against the employer, and could not deduct therefrom the amount so paid on the settlement with the widow. If the insurer fails to defend the action against the insured under the stipulation of the policy, and the insured is obliged to defend it, the insurer is liable for the cost or expenses incurred by the insured in that behalf. Southern Ry. News Co. v. Fidelity & Casualty Co. of New York, 83 S. If the insurer unsuccessfully defends the action, it cannot deduct the expenses of the suit from the amount for which it becomes liable under the policy (Cudahy Packing Co. v. New Amsterdam Casualty Co. [C. C.] 132 Fed. 623). Liability policies usually agree to indemnify the insured against any common-law or statutory liability incurred by reason of injuries sustained by employés or other persons under such circumstances as to create a liability on the part of the insured to the, person so injured. Such a policy stipulates for indemnity against actual legal liability, and does not cover groundless or fictitious claims made against insured. Consequently, it was held in Cornell v. Travelers' Ins. Co., 175 N. Y. 239, |