(x) Burritt v. Saratoga Co. Ins. Co. 5 Hill, 188; Gates v. Madison Co. Ins. Co. 1 Seld. 474; Clark v. Manuf. Ins. Co. 8 How. 235; Cumberland Valley Ins. Co. v. Schell, 29 Penn. State, 31. See Satterthwaite v. Mut. Ben. Ins. Assoc. 14 Penn. State, 393.

(y) Clark v. Manuf. Ins. Co. 8 How 249.

(z) N. Y. Bowery Ins. Co. v. N. Y. Fire Ins. Co. 17 Wend. 359; Walden v. La. Ins. Co. 12 La. 135; Bufe v. Turner, 6 Taunt. 338, 2 Marsh. 46.

(a) Clark v. Hamilton Ins. Co. 9 Gray, 148.

(b) Burritt v. Saratoga Co. Ins. Co. 5 be said about title. But if it be inquired about, full and accurate answers must be made. (c)1 * It is often required, that all buildings standing within * 437

Hill, 188; Gates v. Madison Co. Ins. Co. 3 Barb. 73, 3 Comst. 43. In Loehner v. Home Ins. Co. 17 Misso. 256, Scott, J., said: "The thirteenth section of the charter provides, that, if the assured has a lease estate in the building insured, or if the premises be incumbered, the policy shall be void, unless the true title of the assured and the incumbrances be expressed thereon. There is no question but that the buildings insured were a leasehold estate, and that there was an incumbrance on them at the date of the policy. The application contains an interrogatory, whose aim was to ascertain whether there was an incumbrance on the premises proposed to be insured, but no response is made to it; leaving room for the inference that none existed. The charter then made the policy void. The plaintiffs were not at liberty to obviate this objection by showing that the agent of the company was informed of the existence of an incumbrance at the time of the application, but that he refused to write down the answer, saying that the incumbrance was too trifling. Independently of the statute, which required the incumbrance to be expressed in the policy at the peril of its being void, there was a memorandum indorsed on it, which made known that the company would be bound by no statement made to the agent not contained in the application. The facts being as represented, they could not give the plaintiffs a right of action on the policy in the teeth of the statute, and against the terms of the contract. If the conduct of the agent was such as is alleged, he was guilty of a gross fraud, as is shown by his setting up this defence, which would avoid the policy, and give a right of action for the recovery of the premium, but could not, for reasons given, entitle the plaintiffs to an action on the policy."

(c) Where the mortgagor, whose right to redeem had been seized on execution, not being specially inquired of as to the state of his title, stated the property to be his own, on the application, this was held to be no material misrepresentation or concealment. Strong v. Manufacturers Ins. Co. 10 Pick. 40; Delahay v. Memphis Ins. Co. 8 Humph. 684. So where the store insured stood on the land of another person under an oral agreement, terminable at the pleasure of the owner of the land, on six months' notice, no inquiry being made as to the title, the concealment was held not material. Fletcher v. Commonwealth Ins. Co. 18 Pick. 419. So where a tenant from year to year insured the building as "his building." Niblo v. North American Ins. Co. 1 Sandf. 551; Tyler v. AEtna Ins. Co. 12 Wend. 507, 16 id. 385. See also Hope Ins Co. v. Brolaskey, 35 Penn. State, 282. But see Catron v. Tenn. Ins. Co. 6 Humph. 176; Columbian Ins. Co. v. Lawrence, 2 Pet. 25; Carpenter v. Washington Ins. Co. 16 id. 495.

1 A mortgagor of land in possession may describe himself as owner, Ins. Co. v. Haven, 95 U. S. 242; Dolliver v. St. Joseph Ins. Co. 128 Mass. 315; Clay Ins. Co. v. Beck, 43 Md. 358; Manhattan Ins. Co. v. Barker, 7 Heiskell, 503; so a cestui que trust, Newman v. Springfield Ins. Co. 17 Minn. 123; or an owner of the equity, Washington Ins. Co. v. Kelley, 32 Md. 421; see Mere v. Franklin Ins Co. 68 Mo. 127; or one with an equitable title. Southern Ins. Co. v. Lewis, 42 Ga. 587; or a mortgagor of chattels, Hubbard v. Hartford Ins. Co. 33 la. 325; or a vendee in possession, Bonham v. Iowa, etc. Ins. Co. 25 la. 328; see Hinman v. Hartford Ins. Co. 36 Wis. 159; or one in possession in his wife's right under certain partly performed conditions precedent to his becoming the legal owner, Farmers' Ins. Co. v. Fogelman, 35 Mich. 481. In a policy providing that a failure to state the interest of the insured, if "other than the entire, unconditional, and sole ownership," shall avoid it, a description as "mortgagees " is sufficient, Williams v. Roger Williams Ins. Co. 107 Mass. 377; but not a description of the risk by an insured as "his frame dwelling-house," when his only title is under a quitclaim deed from a second mortgagee, Southwick v. Atlantic Ins. Co. 133 Mass. 457; nor if the insured describes himself as "owner" of property, the title to which was not to pass until it was paid for, although the policy was payable to the real owners, Lasher v. St Joseph, etc. Ins. Co. 86 N. Y. 423. In Fowle v. Springfield Ins Co. 122 Mass. 191, where the policy, to be effective, provided that the insured's interest in the risk as "owner, consignee, factor, lessee, or otherwise," should be truly stated, and lessees for years described a building erected by them as "theirs," "situate on leased land," the majority of the court held the description sufficient. See also Walsh v. Philadelphia Fire Ass. 127 Mass. 383.

a certain distance of the building insured, shall be stated. (d) But this might not always be considered as applicable to personal and movable property. (e) Still, an insurance of chattels described as in a certain building, would be held to amount to a warranty that they should remain there; or rather, it would not cover them if removed into another place or building, unless, perhaps, by some appropriate phraseology, the parties expressed their intention that the insured was to be protected as to this property wherever it might be situated. (f) 1 Where goods insured against fire were described as "contained in a granite store," and one of the walls of the store gave way, and half of the store and the whole of the adjoining building fell, and before there was time to remove the goods, fire broke out in that building, it was held, that the insurers were liable for damage done by fire to the goods not displaced or injured by the fall. (g)

Owing to the form of the pleadings in Massachusetts, a misrepresentation of the assured, not specified in the defendants' answer, cannot be relied on to show a policy of insurance to be void, and so defeat an action thereon, although first disclosed by the plaintiffs evidence. (h)

Policies not unfrequently provide that fraud or false swearing shall forfeit all claims against the insurers. (hh)

(d) Burritt v. Saratoga Co. Ins. Co. 5 Hill,188; Jennings v. Chenango Co. Ins. Co. 2 Denio, 75; Hall v. Peoples Ins. Co. 6 Gray, 185; Wilson v. Herkimer Co. Ins. Co. 2 Seld. 53; Wall v. East River Ins. Co. 3 id. 370; Gates v. Madison Co. Ins. Co. 2 Comet. 43, I Seld. 469; Allen v, Charlestown Ins. Co. 5 Gray, 384. See White v. Mutual Ass. Co. 8 Gray, 566.

(e) Trench v. Chenango Co. Ins. Co. 7 Hill, 122. But see Smith v. Empire Ins. Co. 25 Barb. 497; Wilson v. Herkimer Co. Ins. Co. 2 Seld. 53; Kennedy v. St. Lawrence Co. Ins. Co. 10 Barb 285.

(f) Sexton v. Montgomery Co. Ins. Co. 9 Barb. 191.

(g) Lewis v. Springfield Ins. Co. 10 Gray, 159.

(k) Mulry v. Mohawk Valley Ins. Co. 5 Gray, 541; Haskins v. Hamilton Ins. Co. 5 Gray, 438. These decisions were under a statute which required that "The answer shall set forth, in clear and precise terms, each substantive fact intended to be relied upon in avoidance of the action."

(hh) See a strong case under this provision, Wall v. Howard Ins. Co. 51 Me. 32.

1 Thus, where goods were described as in the chambers of the assured, "No. 117 Franklin St.," the policy was held not to cover goods in an adjoining independent building, though access had been made to it through the partition walls. Sampson v. Security Ins. Co. 133 Mass. 49.