Effect of Making Loss Payable to a Third Party-In Trust or on Commission. pany from objecting to validity of policy by reason of such omission. Gates v. Penn Fire Ins. Co., 10 Hun, 489 (N. Y.) 34. The insurer's agent's knowledge at the time of the insurance of the true state of the title of the assured, is a waiver of the condition of the policy making an inaccurate statement of title a ground for avoiding it. Leach v. Republic F. Ins. Co., 58 N. H. 245. 35.- Assured being bound to represent the true state of title, before company can be bound by knowledge of its agent, it must appear that he knew the entire truth. It is not enough that he was put upon inquiry. Bell v. Lycoming Fire Ins. Co., 19 Hun, 238 (N. Y.) 36. Effect of making loss payable to a third party. Policy insured Van Tuyl & Co. "as interest may appear." Held, that these words waived a specific statement of interest required by the policy. De Wolf v. Capital City Ins. Co., 16 Hun, 116 (N. Y.) 37.- Policy appointing payee to receive the loss, if any, "as interest may appear," does not show knowledge in agent or company of true condition of title. Such a statement cannot, of itself, operate as a waiver of conditions or estop the company from insisting upon a breach as a bar to recovery. Lasher v. Northwestern Nat. Ins. Co., 18 Hun, 104 (N. Y.) 38.- Policy insured "S. D. Wood and Moore & Co., as interest may appear." Wood's interest was that of mortgagee. There were conditions as follows: "If interest of assured, whether as owner, trustee, agent, mortgagee, etc.,” or otherwise, be not stated in the policy, it should be void; also, "if interest of assured be any other than the unconditional sole ownership, etc., it must be so expressed in written part of policy, otherwise it should be void." Held, that interest was sufficiently stated, and that there was no breach of conditions. Dakin v. Liverpool, London & Globe Ins. Co., 77 N. Y. 600. defendant upon inquiry. Company, in such a case, is chargeable with notice of all such facts in relation to interest as a proper and diligent investigation would have developed. Fame Ins. Co. v. Mann, 4 Bradwell, 485 (Ill.) 40.- Assured was in possession of certain furniture under a contract of purchase, with condition that title was not to pass until price was paid. Loss was made payable to vendor as interest might appear. Policy contained clause that if the interest of assured, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee or otherwise, be not truly stated, it should be void. Assured represented property as hers. Held, that insurance was void. That while assured had an insurable interest, it was not truly stated as required. That the clause making loss payable to vendor was not equivalent to notice that he owned the furniture. At most it implied that he had some lien or some interest in the furniture which was consistent with title Lasher v. and ownership in assured. St. Joseph F. & M. Ins. Co., 13 N. Y. Week. Dig. 146; 86 N. Y. 423; 10 Ins. L. J. 845. 41. Waiver. An election to repair with knowledge of the facts operates as a waiver of condition requiring statement of title in policy. Am. Cent. Ins. Co. v. McLanathan, 11 Kans. 533. 42. If an insurer has knowledge of the assured's title, it is a waiver of the condition making an inaccurate statement of the title an avoidance of the policy. Authorities cited. Wheeler V. Traders' Ins. Co., 1 N. East. Rep. 322; 62 N. H. 326, 450. 43. Having issued a policy on cotton with notice that it was intended to cover the interest of railroad companies, the insurer is estopped from asserting that the policy was intended to protect only the legal owners of the cotton. *California Ins. Co. v. Union Compress Co., 133 U. S. 387; 33 L. ed. 730; 7 R. R. & Corp. L. J. 363; 19 Ins. L. J. 385; 10 Sup. Ct. Rep. Pol 39.- When defense is based upon false representation or concealment in reference to title, if the policy is made payable 365. in case of loss to a third party as interest 44. In trust or on commission. should appear, such a clause establishes icy provided that goods in trust or on notice to the defendant of some interest commission must be insured as such, in the property insured, which, although otherwise the policy will not cover such not accurately defined, is sufficient to put | property. Assured took out policy in his own name without declaring that the in the policy was, that "property held in goods were in trust, and subsequently en- trust,” to include that "held as collateral dorsed upon it a transfer to his landlord, security," must be insured as such. Held, with a recital that he had effected it for in an action on the policy, that the prophis use, and as his agent. Upon motion erty was held by D. as collateral security, to take off nonsuit; held, that the policy and therefore "held in trust," within the was within the clause; and that the non-meaning of the policy. Day v. Charter suit was rightly entered. Keely v. Insur- Oak Fire & Marine Ins. Co., 51 Me. 91. ance Co., 1 Phil. 175 (Pa.) 45.- One of the conditions of a policy was in these words: “Goods held in trust or on commission are to be declared and insured as such, otherwise the policy will not cover such property; goods on storage must be separately and specially insured." The assured held the goods in pawn. Held, that they were goods in trust, and, as he made no declaration and insurance of them as such, according to the condition of his policy, they were not covered by it. Rafael v. Nashville Marine & Fire Ins. Co., 7 La. Ann. 244. . By property 49.- Where a condition in a policy of insurance provided "that property held in trust or on commission, must be insured as such, otherwise the policy will not cover such property. held in trust is intended property held under a deed of trust, or under the appointment of a court, or held as collateral security." Held, that holding property in secret trust, to defraud the creditors of the real owner, was not such a holding in trust as was contemplated by the condition-that if held as a security for a debt, it would be within the condition. Ayres v. Hartford Fire Ins. Co., 17 Iowa, 176. 46.- A provision in a policy, that "property held in trust or on commission must be insured as such," otherwise the 50.- Policy contained condition, policy will not cover it, includes every-"property must be insured in the names thing in which the insured has only a of all the owners, and applicant must qualified interest with the possession, state the interest of each owner, &c." It while the ownership is in a third person. appearing that the insured property, Turner v. Stetts, 28 Ala. 420. grain, was insured in the name of the plaintiff, who had given warehouse receipts for it to several banks. Held, that the condition was broken, and plaintiff could not recover. McBride v. Gore District Mut. Ins. Co., 30 Up. Can. Q. B. 451. 47.- Where a policy of insurance provides that "goods held in trust, or on commission, are to be declared as such, otherwise the policy will not extend to cover such property," and it appears that the insured have obtained their insurance, without making any specific statement of the nature of their interest in the goods destroyed; held, that the insurer had a right to limit the extent of the risk by such condition; and that a knowledge thereof, by the insured, must be presumed from their acceptance of the policy, and that such condition had the effect of limiting the risk to the goods actually belonging to the insured. Baltimore Fire Ins. Co. v. Loney, 20 Md. 20. 48.-D. received a deed, absolute in form, of certain real estate, to secure him against loss for liabilities he had assumed or might assume for the grantor; and afterwards gave the grantor a written agreement to reconvey upon being indemnified. The property was insured by D. without disclosing the nature of his interest therein. One of the conditions 51. Lessee. A lessee has an insurable interest in buildings erected by him on the leased property, but such interest must be disclosed or stated. Allen et al. v. Sun Mutual Ins. Co.; 14 Ins. L. J. 575; 36 La. Ann. 767. 52.- Describing as his imports sole and unconditional ownership; if leasehold or held on an executory contract must be stated. Brown v. Commercial F. Ins. Co., 86 Ala. 189. 53. Vendor and vendee. An applicant for insurance on personal property who has made, but not delivered a bill of sale thereof, taking in return only a promissory note secured by mortgage thereon, may truly represent and warrant himself to be the owner thereof. Vogel v. People's Mut. Fire Ins. Co., 9 Gray, 23 (Mass.) 54.- A purchaser under a contract of 59. The right of a third party to a reconveyance upon certain conditions which have not been complied with, does not affect title of assured, and the insurance is properly in his name. Carrigan v. Lycoming Ins. Co., 10 Ins. L. J. 606; 53 Vt. 418. purchase, of which part of the purchase money is unpaid, may describe himself as owner, and insure to the full value of the buildings. Laidlaw v. Liverpool, London, &c. Ins. Co., 13 Grant Ch. 377 (Can.) 55.- Policy to be void if the insured's interest is not "truly stated" therein, and if his interest is other than the entire 60. Joint owners. When policy is unconditional and sole ownership for the issued to two persons jointly the fact use of the assured, it must be so repre- that the assured have separate and dissented. The assured's interest was that tinct interests is no ground of objection of purchaser at sheriff's sale. None of to validity of the insurance in absence of the purchase money had been paid, and an express requirement in the policy that his wife had dower in it as widow of a the precise nature and extent of the informer owner, but he described it as un-terests should be represented. Castner encumbered. Held, policy void. Security v. Farmers' Mutual Ins. Co., 10 Ins. L. J. Ins. Co. v. Bronger, 6 Bush, 146 (Ky.) 458; 46 Mich. 15. 56. If the assured at the time of the issue of the policy holds only the bare legal title with an existing obligation by written contract to transfer it to a purchaser in whom is the entire equitable estate, such interest must be truly stated in the policy under the clause requiring interest to be stated if anything less than the sole absolute unconditional ownership. Clay Ins. Co. v. Huron Man. Co., 31 Mich. 346. 57.- When a party holds an equitable interest only by contract of purchase, the title to remain in the vendor until consideration is fully paid, if insurance is obtained by the former in his own name, his interest must be truly stated, other wise policy is void on the ground of concealment, insured being required by one of the conditions of the policy to state whether any other person had an interest in the insured property, and if so, its nature. Agricultural Ins. Co. v. Montague, 38 Mich. 548. 58.- Policy required interest of assured, being other than sole owner, to be expressed in written part of policy. It insured A. upon "his property," etc., loss, if any, being made payable to B. Property was in possession of A. under a contract of purchase whereby title was to remain in B. until fully paid for. Fire occurred before such payment was made. Held, that policy was void by reason of interest of assured not being stated in the policy. Lasher v. Northwestern Nat. Ins. Co., 18 Hun, 98 (N. Y.); Lasher v. St. Joseph Ins. Co., 10 Ins. L. J. 845; 86 N. Y. 423. 61. Partners. ner in a firm of two, and owning all the property and assets of said firm, the other being interested only in the profits, obtained insurance on “his stock of cabinet ware, furniture," etc., under policy stipulating that if the "interest to be insured be a leasehold interest or other interest not absolute, it must be expressed in writing, or the policy shall be void.” Held, that his interest was an absolute equitable interest, to which the above provision did not apply. Irving v. Excelsior Fire Ins. Co., 1 Bosw. 507 (N. Y.) Plaintiff, being part 62.- Insurance on property described "his goods," in absence of fraud or misrepresentation, will protect the interest of the insured, who is in fact owner of them, although his co-partner is interested in the application and profits of such goods. Id. 63. When a member of a firm describes the property as "his own "and in affidavit in preliminary proofs states he is the principal member of a firm, that he furnished all the capital, etc., the other partner is competent to testify that, although ostensibly a partner, he yet practically had no interest whatever in the policy. Id. 64. Kusband and wife. A representation, in reply to a question as to title. that the property was "his," when he held but a life estate, and built the house on land belonging to his wife and her sister in common, with the right to dispose of it by removal or occupation, is not such a misrepresentation as will avoid the policy, in the absence of intentional General Rules. deception or over-valuation of the house. No. 291. Curry v. Commonwealth Ins. Co., 10 Pick. 535 (Mass.) 65.— A married woman entitled to cer Section nine. Warranty. No. 211. General rules. tain property bequeathed to her by will, V. FRAUD AND FALSE SWEARING. may properly and correctly represent herself as the owner. Butler v. Standard Fire Ins. Co., 26 Grant Ch. 341 (Can.) 66.- A man has a right to sue, for the use of his wife, on a policy made out in his name on her property, where the insurance agent, contrary to instructions and without plaintiff's knowledge, made out the policy in his name, after being told that it belonged to the wife. Deitz v. Providence Washington Ins. Co., 8 S. E. Rep. 616; 31 W. Va. 851. 67.- Where a contract not under seal is made by an agent in his own name for an undisclosed principal, either the agent or the principal may sue upon it. Id. 68.- A policy of insurance which requires the true ownership of the property to be stated, issued in the name of a firm of which a wife is the sole member, is avoided by statements and acts of her husband in applying for the insurance, which induced the agent to believe the husband to be the person meant by such firm name and to be the owner of the property. *Pelican Ins. Co. v. Smith, 9 So. Rep. 327 (Ala.) 69.- A policy taken out by a husband in his own name upon his wife's property, without disclosing her ownership or that he was acting as her agent is void. *Diffenbaugh v. Union F. Ins. Co., 30 W. N. C. 406 (Pa.) 70. Cross References. Section one. What constitutes fraud and false swearing. What does not constitute fraud and false swearing. As affected by agency. Effect of discrepancy between proofs Other special cases. 1. General rules. By the term "false swearing," as used in the conditions of the policy, the jury were instructed, was meant an attempt to defraud the company, by swearing intentionally, and with bad motives, to the existence of property which the insured had never lost, or by greatly overcharging that which was destroyed, or not acknowledging that which had been saved. Moadinger v. Mechanics' Fire Ins. Co., 2 Hall, 490 (N. Y.) 2.- Under a policy of insurance which provided that if there should be any false swearing on the part of the assured, he should forfeit all claim to the policy, a failure by the latter to sustain his affidavit by direct evidence to the amount Parties or persons insured. claimed, will not be considered as proof Nos. 24, 40, 47, 51, 101, 112, 113. of having sworn falsely, and thereby forSubd. V. Location and description, feit the insurance. In open policies it is No. 211. often extremely difficult to prove the actual value of the goods lost; it suffices to show by testimony the great probability of the truth of the affidavit; and, in weighing this testimony the character of the assured, as well as the credibility of Subd. IX. Insurable interest. Subd. XIII. Section four. Construction. No. 94. Subd. II. Misrepresentation. Nos. 16, the witness, must be considered. Mar56, 58, 59, 64. chesseau v. Merchants' Ins. Co., 1 Rob. Subd. III. Materiality. Nos. 9, 16, 39.. 438 (La.); Wightman v. Western Marine Section five. & Fire Ins. Co., 8 Id. 442 (La.) Subd. V. Interest of insured. 3.- Over-valuation in a claim for loss Subd. VI. Ground not owned in fee by mistake or inadvertence does not avoid simple. Nos. 1, 17. the insurance; contra, if knowingly done Subd. IX. Change in interest, etc. and with fraudulent intent. Hickman v. General Rules. Long Island Ins. Co., 1 Edmonds' Sel. 4. Assured may be guilty of such gross misconduct, not amounting to a fraudulent intent to burn the building, as to deprive him of his right to recover on the policy. Chandler v. Worcester Mut. Fire Ins. Co., 3 Cush. 328 (Mass.) 5. To create a forfeiture under a clause in a policy declaring that all false swearing or fraud shall cause a forfeiture of all claims against the insurers, the false swearing must be done willfully and knowingly with a view to defraud the company. Franklin Fire Ins. Co. v. Updegraff, 43 Pa. 350. 10.- To sustain defense of a fraudulent misrepresentation, it is not necessary that the company refund the premium. Blaeser v. Milwaukee Mutual Ins. Co., 37 Wis. 31. 11.- Fraud on part of the insured in obtaining insurance voids it without any express provision in the policy to that effect. Moore v. Virginia Fire Ins. Co., 28 Grat. 508 (Va.) 12.- Fraud and false swearing as to one item of the insurance covered by the policy avoids the whole contract. Id. 13.- Policy contained provision as follows: "Assured hereby covenants that the representation given in the application for this insurance contains a just, full and true exposition of all the facts and 6.- Where a policy by its terms is void, no action can be maintained thereon upon the ground that the insured was in-circumstances in regard to the condition, duced to accept it by the fraud of the insurer. Tebbetts v. Hamilton Mut. Ins. Co., 3 Allen, 569 (Mass.) 7. A contract of insurance is entire, although covering different items, and if assured has falsely and fraudulently sworn to a false statement in regard to one of the items, it avoids the entire insurance. Cashman v. Lond. & Liv. Fire Ins. Co., 5 Allen, 246 (N. B.) 8.- Where a policy provides that the insured in case of loss shall deliver to the insurer a particular statement of such loss, verified by his affidavit, and that any fraud or false swearing in respect thereto should forfeit all claim under the policy, a false statement, to operate as a forfeiture, must be willfully made with respect to a material matter, and with the intent to deceive the insurer. Marion v. Great Republic Ins. Co., 35 Mo. 148. situation, value and risk of the property insured, and that if any material fact or circumstance shall not have been fairly represented," it shall be void. Upon the trial the judge instructed the jury, that if the representations in regard to the painting insured were falsely and fraudulently made and relied on by the insurer, and were untrue, it would void the policy, and that mere expressions of opinion and belief were not to be taken as misrepresentations of fact. Held, no error. Wood v. Firemen's Ins. Co., 126 Mass. 316. 14. To sustain defense of fraud and false swearing in relation to title, it is necessary to show that the assured had not an absolute title at the time of the loss; that he knowingly, falsely and fraudulently asserted, at the time of making a settlement, and for the purpose of inducing the defendant to make the same, that he had a perfect title; that the defendant, relying upon such false assertion of title, was, in fact, induced to make the settlement alleged to have been made, and that defendant would not have made such settlement if such false reports had not been made. Stache v. St. Paul Fire & M. Ins. Co., 49 Wis. 89. 9. The policy, after describing what preliminary proofs are required, adds: **All fraud or attempts at fraud, by false swearing or otherwise, shall cause a forfeiture of all claim on this company." Held, willful and intentional fraud, or corruptly swearing to a false statement as to a material matter, either in the application or in the preliminary proofs, forfeits 15. To sustain defense of fraud in the insurance. Such fraud must, of swearing to proofs and amount of claim it course, be proved affirmatively by the must be established not only that propcompany. The fraud or false swearing erty was worth less but that assured made must be actual and intentional, and does a fraudulent valuation. Putnam v. Comnot include an over-estimate of the monwealth Ins. Co., 18 Blatch. 368 (U. S. amount of loss honestly made. Phoenix | Cir.) Ins. Co. v. Munday, 5 Cold. 547 (Tenn.) 16. Under condition that "all fraud |