conditions of the policy against incumbrances. Bowlus v. Insurance Co., 133 Ind. 106 (32 N. E. Rep. 319; 20 L. R. A. 400); Kister v. Insurance Co., 128 Pa. St. 553 (18 Atl. Rep. 447; 15 Am. St. Rep. 696; 5 L. R. A. 646); Dwelling-House Ins. Co. v. Gould, 134 Pa. St. 570 (19 Atl. Rep. 793); Weiss v. Insurance Co., 148 Pa. St. 349 (23 Atl. Rep. 991); Insurance Co. v. Saindon, 52 Kan. 486 (35 Pac. Rep. 15; 39 Am. St. Rep. 356); Insurance Co. v. Stein, 72 Miss. 943 (18 So. Rep. 414); Russell v. Insurance Co., 71 Ia. 69 (32 N. W. Rep. 95)."

Sec. 429. Vacant and unoccupied premises. What is meant by the term "vacant and unoccupied " in an insurance policy is a question of law, but whether a building was vacant and unoccupied at the time of a loss, within the meaning of a policy, is a question of fact. Home Ins. Co. v. Mendenhall, 164 Ill. 458 (45 N. E. Rep. 1078; 36 L. R. A. 374). A forfeiture on account of nonoccupancy is not necessarily prevented by the fact that the furniture of the insured remained in the house, and his hired man made a frequent inspection of the household goods and had a general oversight of the buildings during the day, such supervision not being a full equivalent for the constant supervision involved in the occupancy of the premises as the customary place of abode, and the actual presence in the building of those who are living in it and using it as a dwelling house day and night. Hanscom v. Home Ins. Co., 90 Me. 333 (38 Atl. Rep. 324). Construing Me. Rev. Stat., ch. 49, § 20, providing that "a change in the property insured or in its use or occupation, or a breach of any of the terms of the policy by the insured, do not affect the policy unless they materially increase the risk," it is held that an insurance company seeking the benefit of a forfeiture clause on account of the nonoccupancy of the premises, has the burden of showing that such nonoccupancy materially increased the risk, but such burden of proof may be sufficiently sustained in every instance by the natural presumption to that effect, which is based upon observation and experience of intelligent men generally. Jones v. Granite State Fire Ins. Co., 90 Me. 40 (37 Atl. Rep. 326). The court say: "The presumption which in this case is strong enough to stand as prima facie

proof, until contradicated by evidence, is denominated as a presumption of fact sanctioned by the law, or a mixed presumption of law and fact. The law authorizes its adoption because it is in consonance with reason and experience, and because from its importance and frequency of occurrence it has attracted the attention of the law and received its commendation. The fact that any property is not in the possession or under the close supervision of its owner naturally produces a belief that it is exposed to more than usual risks, such risks being more or less, according to circumstances. Insurance companies invoke the benefit of this sort of presumption, and we think they are entitled to it in aid of the burden of proof which the statute imposes on them." Particular case in which an insurance policy was held not invalidated on account of the violation of the condition against vacancy. Clifton Coal Co. v. Scottish U. & Nat. Ins. Co., 102 Ia. 300 (71 N. W. Rep. 433).

Sec. 430.

Conditions against additional insurance. The fact that a policy of insurance procured in the name of the owner provides for the payment of the loss to a mortgagee, does not make the mortgagee the insured within the meaning of a condition in the policy rendering it void if the insured procured double insurance. Holbrook v. Baloise Fire Ins. Co., 117 Cal. 561 (49 Pac. Rep. 555). Citing, Williamson v. Insurance Co., 86 Wis. 395, 396 (57 N. W. Rep. 46; 39 Am. St. Rep. 906); Gillett v. Insurance Co., 73 Wis. 203 (41 N. W. Rep. 78; 9 Am. St. Rep. 784); Moore v. Insurance Co., 141 N. Y. 219 (36 N. E. Rep. 191); and note in 28 Am. Law Reg. (N. S.) pp. 221-243. Where a mortgagee, of his own motion, takes out insurance in the name of the mortgagor or owner of the property without authorization of the latter, and causes the loss, if any, to be made payable to the mortgagee, it is, in effect, insurance by the mortgagee of his interest for his account and does not constitute "other insurance" so as to vitiate a prior policy issued to the mortgagor, which prohibits other insurance. Cannon v. Home Ins. Co., 49 La. 1367 (22 So. Rep. 387). The same is held as to a policy taken out by the owner's agent to procure a loan for him without his knowledge and

made payable to the mortgagee. Cowart v. Capital City Ins. Co., 114 Ala. 356 (22 So. Rep. 574).

Sec. 431. Condition against increase of hazardException of loss by explosion. A condition in an insurance policy avoiding it if the hazard be increased by any means within the insurer's knowledge, or if fire works are allowed on the premises, is broken by the storage of fire works in a residence on one evening to be used the next day, from which fire ensues and destroys the insured property. Heron v. Phænix Mut. Fire Ins. Co., 180 Pa. St. 257 (36 Atl. Rep. 740; 57 Am. St. Rep. 638; 36 L. R. A. 517). Where property covered by an insurance policy which contained a provision that "this insurance does not apply to or cover any loss by explosion, unless fire ensues, and then the loss or damage by fire only," and had attached thereto a special clause. providing "that this policy insures against any loss or damage caused by lightning to the interest of the assured in the property described, not exceeding the sum insured, and subject in all other respects to the terms and conditions of the policy," was destroyed by the explosion of powder stored across the street in a building, of which storage neither party had any notice, occasioned by the lightning striking the building adjoining the powder, it is held that, within the meaning of the clauses recited, the loss was occasioned by an explosion which was not included in the risk and the company is not liable. German. Fire Ins. Co. v. Roost, 55 O. St. 581 (45 N. E. Rep. 1097; 60 Am. St. Rep. 711).

Sec. 432. Waiver of conditions of forfeiture. The existence of a mortgage in violation of a condition in an insurance policy, will not affect its validity where the agent has notice of it at the time he issues the policy. Cowart v. Capital City Ins. Co., 114 Ala. 356 (22 So. Rep. 574). Where, at the time the policy is issued the insured gives full information as to his title, to the agent of the insurer, the latter cannot insist upon a forfeiture because the title is not such as is covenanted in the policy. Home Ins. Co. v. Mendenhall, 164 Ill. 458 (45 N. E. Rep. 1078; 36 L. R. A. 374). Knowledge of the insured's title by the agent of the insurer will

estop the latter to enforce a forfeiture on account of a defect in the title,although the policy provided that the insured's interest shall be unconditional and sole, and that no " representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be endorsed hereon or added thereto." Hartford Fire Ins. Co. v. Keating, 86 Md. 130 (38 Atl. Rep. 29; €3 Am. St. Rep. 499). To the same effect is the case of Trustees of St. Clara E. Acd. v. Northwestern Nat. Ins. Co., 98 Wis. 257 (73 N. W. Rep. 767). Where an insurance company has knowledge of all the facts in regard to the nonoccupancy of the insured property which has been destroyed, and after its destruction requests the owner to take the steps provided for by the policy for a settlement, the details of which are kept under consideration between them for more than four months, during which time no claim of forfeiture is made by the company, it will be held to have waived its right to make such claim. Hanscom v. Home Ins. Co., 90 Me. 333 (38 Atl. Rep. 824). Where one accepted from an insurance company a policy of insurance without knowing that it contained a condition requiring him to be the sole owner of the property, which policy was issued by a solicitor of the company not having sufficient knowledge of the English language to make a proper report of the true condition of the insured's title it is held that the company cannot enforce a forfeiture on account of the insured's title not conforming strictly to the conditions of the policy. Miotke v. Milwankee Mechanics' Ins. Co., 113 Mich. 166 (71 N. W. Rep. 463).

Sec. 433. Husband's right to recover for loss of property in which his wife has equal interest. A husband to whom a policy is issued, is entitled to recover the entire damages accruing to whatever interests are covered by the policy, although his wife has an equal interest with himself in the property insured. Miotke v. Milwaukee Mechanics' Ins. Co., 113 Mich. 166 (71 N. W. Rep. 463). The court say: Insurance Co. v. Barracliff, 45 N. J. L. 543, it was determined that a husband, in possession and enjoyment with his wife of her real and personal property, with an inchoate right

"In

of curtsey, has an insurable interest in both, and, when the intention was evinced to insure the whole ownership, may recover the whole loss.' This case contains an interesting discussion of the subject, and asserts the doctrine that the amount to be recovered will depend, not on the loss happening to the individual interest of the assured, but on the damage accruing to whatever interests are covered by the policy, so far as the assured represents those interests, whether as his own or by the precedent authority or subsequent ratification of others. See Waring v. Insurance Co., 45 N. Y. 606 (6 Am. Rep. 146)."

Sec. 434. Recovery in case of total loss-What is a "total loss." Mo. Rev. Stat. 1889, § 5897, requiring full payment of insurance in case of total loss, it is held that there is a "total loss" where a building by reason of fire has lost its identity and specific character as a building and becomes so far disintegrated that it cannot be properly designated as a building although some part of it may remain standing and can be safely used in rebuilding. O'Keefe v. Liverpool & L. & G. Ins. Co., 140 Mo. 558 (41 S. W. Rep. 922; 39 L. R. A. 819). Citing, Lindner v. Insurance Co., 93 Wis. 526 (67 N. W. Rep. 1125); Seyk v. Insurance Co., 74 Wis. 72 (41 N W. Rep. 445; 3 L. R. A. 523); Oshkosh Packing & Provision Co. v. Mercantile Ins. Co., 31 Fed. Rep. 200; Insurance Co. v. Bachler, 44 Neb. 549 (62 N. W. Rep. 911); Insurance Co. v. Garlington,66 Tex. 103 (18 S. W. Rep. 337); Huck v. Insurance Co., 127 Mass. 306 (34 Am. Rep. 373); Williams v. Insurance Co., 54 Cal. 450; Corbett v. Insurance Co., 85 Hun. 250 (32 N. Y. Supp. 1059); Insurance Co. v. Eddy, 36 Neb. 461 (54 N. W. Rep. 856; 19 L. R. A. 707). In Arkansas, a policy upon real property, in case of total loss, becomes a liquidated demand against the insurance for its face or the amount on which premiums are paid. Laws 1899, p. 112. Substantially the same is provided by statute in Florida and Washington. Florida Laws 1899, p. 33; Wash. Laws. 1899, p. 333.