Ins. Co., 99 Tenn. 729 (42 S. W. Rep. 451; 63 Am. St. Rep. 862; 39 L. R. A. 148). Citing, Insurance Co. v. Fix, 53 Ill. 151; Hale v. Insurance Co., 6 Gray 169 (66 Am. Dec. 410); Pupke v. Insurance Co., 17 Wis. 378 (84 Am. Dec. 754); Grosvenor v. Insurance Co., 17 N. Y. 391. Where a mortgagee, holding a fire insurance policy providing that the loss, if any, shall be payable to the mortgagee as his interest might appear, which was procured and paid for by the mortgagor, foreclosed his mortgage and bid in the premises at the sale for the full amount of his debt, and before the expiration of the time for redemption, the dwelling house covered by the mortgage and policy was injured by fire, it is held that the insurance company having paid the loss to the mortgagee, he was entitled to retain the money, no redemption having been made from the sale. Carlson v. Presbyterian Bd. Rlf. for Disabled Ministers, 67 Minn. 436 (70 N. W. Rep. 3). One who takes an assignment of the right to recover for a loss under an insurance policy with knowledge that the mortgagee claims some rights thereunder, takes subject to the rights of such mortgagee and such mortgagee may be subrogated to a judgment rendered in favor of the assignee in such an action. McDonald v. Basom, 102 Ia. 419 (71 N. W. Rep. 341).

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Sec. 426. Mortgage clause-Conditions against change of title. An insurance policy taken out by an executor who has no interest in the property, which provides for the payment of the loss to the mortgagee as his interest may appear, is not rendered void as to such mortgagee by reason of the condition therein that " this entire policy shall be void if the interest of the insured be other than unconditional, having sole ownership, or, if the subject of insurance be a building on ground not owned by the insured in fee simple," where it appears that no written application was made for the insurance and no fraudulent representations of title were made at the time of effecting the insurance. Burrows v. Mc Calley,17 Wash. 269 (49 Pac. Rep. 508). A provision in an insurance policy providing for the payment of a loss,if any, to a mortgagee, that as to the interest of the mortgagee the insurance shall not be invalidated by any act or neglect of the mortgagor, nor by any change in title or possession, or by legal

process or voluntary conveyance,provided the mortgagee shall notify the insurer of any change of ownership which shall come to the knowledge of the mortgagee and have permission for such change of ownership endorsed on the policy, has reference to a change or transfer of title or possession to a third person and not to one from the mortgagor to the mortgagee through a foreclosure. Pioneer Sav. & L. Co. v. St. Paul F. & M. Ins. Co., 68 Minn. 170 (70 N. W. Rep. 979). Construing a similar mortgage clause, it is held that the commencement of a suit to foreclose a mortgage and the appointment of a receiver to take charge of the property are not such a breach as will avoid the policy. Lancashire Ins. Co. v. Boardman, 58 Kan. 339 (49 Pac. Rep. 92; 62 Am. St. Rep. 621). Construing an insurance policy issued to a mortgagee, to which was attached a similar mortgage clause, but the body of which contained a condition that the policy should be void in case of any change of title or possession taking place other than by death of the insured it is held that the policy was not forfeited by the commencement of foreclosure proceedings between the dates of the application and the issuance of the policy, nor by the execution of a deed by the mortgagor for the premises, which was accepted before the loss. Pioneer Sav. & L. Co. v. Providence Wash. Ins. Co., 17 Wash. 175 (49 Pac. Rep. 231; 38 L. R. A. 397). The court say: "We believe the rule supported by the better authority is that the contract of insurances with a mortgagee by an insurance company is a separate, distinct contract from that of the owner of the property, and that it is in contemplation between the parties to the contract that a change of title may occur, and that a third person or the mortgagee may become the owner, and that the ordinary stipulation in insurance policies in such contracts, that the mortgagee shall notify the insurance company of a change of title, is one not a substantive part of the contract, for violation of which a forfeiture will lie, but is simply a subsequent breach of the contract, for which damages may lie if the insurance company is injured."

Sec. 427. "Sole and unconditional ownership of property"-Construction of forfeitures. Where a wife has no claim upon the real estate of her husband in his con

veyance of which she does not join, except she survive him, one holding under such a deed is "absolute owner" within the meaning of that term in an insurance policy. Ind. Rev. St. 1894, § 2652, applied. Ohio Farmers' Ins. Co. v. Bevis, 18 Ind. App. 17 (46 N. E. Rep. 928.) In an action on an insurance policy, the claimant sufficiently shows "sole and unconditional" ownership of the property, by proving that he was in possession of it, claiming it as his own and exercising acts of ownership over it when the policy was issued, until the defendant has overcome such prima facie evidence of title. Sprigg v. American Cent Ins. Co., Ky. (40 S. W. Rep. 575). A warranty by the insured that he is the sole and undisputed owner of the land and property insured, is not broken where the insured is in possession of the land under a contract of purchase which he has completely performed and is entitled to a conveyance. Baker v. State Ins. Co., 31 Ore. 41 (48 Pac. Rep. 699; 65 Am St. Rep. 807). Citing, Insurance Co. v. Staats, 102 Pa. St. 529; Insurance Co. v. Dougherty, 102 Pa. St. 568; Insurance Co. v. Erb, 112 Pa. St. 149 (4 Atl. Rep. 8); Insurance Co. v. Dyches, 56 Tex. 573; Hough v. Insurance Co., 29 Conn. 10 (76 Am. Dec. 581); Gaylord v. Insurance Co., 40 Mo. 15 (93 Am. Dec. 289); Swift v. Insurance Co., 18 Vt. 305; Pelton v. Insurance Co., 77 N. Y. 605; Rumsey v. Insurance Co.,17 Blatch.527 (1 Fed. Rep. 396); Martin v. Insurance Co., 44 N. J. L. 490; Bonham v. Insurance Co., 25 Ia. 328, 335. Where the insurer makes no inquiry as to the title and the insured makes no representations relative thereto with intent to deceive, an insurance policy is not vitiated by a condition that it shall be void "if the subject of insurance be * * * on ground not owned by the insured in fee simple," in a case where the insured had paid the full purchase price but had not yet received the deed from his vendor. Dooley v. Hanover Fire Ins. Co., 16 Wash. 155 (47 Pac. Rep. 507; 58 Am. St. Rep. 26). The fact that the owner of a building, by mistake as to the boundaries of the lot, built it so that it stood twenty feet in the street and two feet on the adjoining lot of another, does not create a breach of condition in an insurance policy providing that, "if the subject of insurance be a building on ground not owned by the insured in fee simple," the

policy shall be void, where it appears that no objection to the encroachment upon the adjoining lot has ever been made by any one and the owner is presumed to be the owner in fee of the street to the center thereof. Haider v. St. Paul Fire & M. Ins. Co., 67 Minn. 514 (70 N. W. Rep. 805). An insurance policy is not avoided for the reason that the interest of the insured was "other than unconditional and sole ownership," where the property was devised to the insured "to be his forever for his own proper use," subject only to a restriction of alienation until he attained the age of thirty years. Yost v. McKee, 179 Pa. St. 381 (36 Atl. Rep. 317; 57 Am. St. Rep. 604). A policy of insurance on a building, issued to husband and wife, containing a condition that it is to be void if the building was on "ground not owned by the insured in fee simple," is not invalidated by the fact that one of them owned the land in fee simple while both owned the building. Demuth v. Old Town Bank, 85 Md. 315 (37 Atl. Rep. 266; 60 Am. St. Rep. 322). Where ratification of the sale by a court is necessary to pass title to a purchaser at a foreclosure sale, until such ratification, his interest is not "unconditional and sole," within the requirement of an insurance policy. Hartford Fire Ins. Co. v. Keating, 86 Md. 130 (38 Atl. Rep. 29; 63 Am. St. Rep. 499).

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Sec. 428. Change in insured's title-Liens and incumbrances. A provision in an insurance policy that "this policy * * shall be void * * * if any change other than by the death of an insured takes place in the interest, title or possession of the subject of the insurance whether by legal process or judgment, or by voluntary act of the insured, or otherwise," is held not to be violated by the insured executing a mortgage of the property, as the term change" means a transfer of interest or title, not an incumbrance simply. Peck v. Gerard Fire & M. Ins. Co., 16 Utah 121 (51 Pac. Rep. 255). Citing, Barry v. Insurance Co., 110 N. Y. 1 (17 N. E. Rep. 405); Judge v. Insurance Co., 132 Mass. 521; Insurance Co. v. Spankneble, 52 Ill. 53. To the same effect is the case of Lampasas Hotel & Park Co. v. Phanix Ins. Co., Tex. Civ. App. (38 S. W. Rep. 361). Such a condition is not violated by the existence of a

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mortgage on the property at the time the insurance is issued. Cowart v. Capital City Ins. Co., 114 Ala. 356 (22 So. Rep. 574). Merely permitting the filing of a claim for a mechanic's lien against property does not violate a condition against permitting the property to become incumbered. Omaha Fire Ins. Co. v. Thompson, 50 Neb. 580 (70 N. W. Rep. 30). Where mechanics' liens have been filed against property at the time a policy of insurance was issued thereon, which contained a condition forbidding "a change in the interest, title, or possession of the subject of insurance, whether by legal process, or judgment, or by voluntary act of the insured or otherwise," it is held that a subsequent foreclosure of such mechanics' liens and a sale of the property thereunder, did not avoid the policy so as to prevent a recovery thereon, for a loss which happened before the expiration of the time given the owner for redemption. Greenlee v. North British & Mer. Ins. Co., 102 Ia. 427 (71 N. W. Rep. 534; 63 Am. St. Rep. 455). Where it is sought to invalidate an insurance policy on account of a violation of a condition against incumbrances by showing the existence of a mechanic's lien against a portion of a building on the same lot upon which the insured property stands, the evidence must clearly show that the building is the same building covered by the insurance policy. Greenlee v. Iowa State Ins. Co., 102 Ia. 260 (71 N. W. Rep. 224).

Where a condition in an insurance policy against incumbrances does not avoid it because of the insured's knowledge of an existing incumbrance, a subsequent renewal thereof, or a new incumbrance given for the purpose of discharging the old one, does not affect the validity of the policy. Koshland v. Home Mut. Ins. Co., 31 Or. 321 (49 Pac. Rep. 864); Koshland v. Fire Ass'n, 31 Or. 362 (49 Pac. Rep. 865). In the first case the court say: "There is some diversity of opinion in the adjudged cases as to whether, after an existing mortgage has been paid and discharged, the assured can give another for the same or a less amount without violating the condition of the policy against incumbrances; but where the new mortgage is given merely in lieu of an existing incumbrance, reason as well as authority favors the doctrine that it does not increase the risk, and therefore is no violation of the