with it, seems to be for the jury rather than for the court. (p)1 But it is not unfrequently determined by the court as a matter of law. (2) And if the jury find the representation to be material, and to be false, the consequence follows as a matter of law, and the policy is avoided. (r) Policies often provide, that unless the applicant shall make a correct description and statement of all the facts required or inquired for in the application, and all other facts material in reference to the insurance or to the risk, or to the value of the property, the policy shall be void. In such a case the insured must make true answers to all the interrogatories, although they may be on subjects not material to the risk. (s) So, if the policy provides that any change in the premises insured, such as the erection or alteration of a building, shall avoid the policy, unless the written consent of the insurers is first obtained, the question whether the change is material or not is of no importance. (t) If, however, the policy contains the clause, that the description of the property or answers are correct, “so far as regards 435 the condition, situation, value, title, and risk of the same," and that the misrepresentations or suppressions of material facts shall destroy the claim of the insured for damage or loss, the answers to the questions are not warranties. (u)2 * (p) Franklin Ins. Co. v. Coates, 14 Md. 285; Gamwell v. Merch. Ins. Co. 12 Cush. 167; Parker v. Bridgeport Ins. Co. 10 Gray, 302; Grant v. Howard Ins. Co. 5 Hill, 10; Gates v. Madison Co. Ins. Co. 2 Comst. 43; Percival v. Me. Ins. Co. 33 Maine, 242, Campbell v. New England &c. Ins. Co. 98 Mass. 381. (4) Carpenter v. American Ins. Co. 1 Story, 57, 16 Pet. 495, 4 How. 185; Columbian Ins. Co. v. Lawrence, 2 Pet. 25; Houghton . Manufacturers Ins. Co. 8 Met. 114. * Hill, 188; Williams v. New England Ins. Co. 31 Me. 224; Murdock v. Chenango Co. Ins. Co. 2 Comst. 210; Sexton r. Montgomery Co. Ins. Co. 9 Barb. 200; Kennedy v. St. Lawrence Co. Ins. Co. 10 id. 285; Houghton v. Manuf. Ins. Co. 8 Met. 114; Lee v. Howard Ins. Co. 3 Gray, 583; Macomber v. Howard Ins. Co. 7 id. 257; Bowditch Ins. Co. v. Winslow, 8 id. 38; Tebbitts v. Hamilton Ins. Co. 1 Allen, 305, 3 id. 569; Abbott v. Shawmut Ins. Co. 3 Allen, 213; Hardy v. Union Ins. Co. 4 Allen, 217; Chase v. Hamilton Ins. Co. 20 N. Y. 52; Patten v. Merchants Ins. Co. 38 N. H. 338. And policies made by stock and mutual companies stand on the same footing in this respect. Draper v. Charter-Oak Ins. Co. 2 Allen, 569. (r) Howell v. Cincinnati Ins. Co. 7 Ohio, pt. 1, 284. "The fact is to be settled by the jury, but it must be upon legal and sufficient evidence; and where the evidence is agreed, it is a question of law whether it be sufficient or not to establish the fact." Putnam, J., in Fletcher v. Commonwealth Ins. Co. 18 Pick. 421. (u) Elliott v. Hamilton Ins. Co. 13 (s) Burritt v. Saratoga Co. Ins. Co. 5 Gray, 139; Richmondville Un. Sem. v. (1) Calvert v. Hamilton Ins. Co. 1 Allen, 308. 1 But for neither, if the parties agree that any falsity of statement in the application shall avoid, Etna Ins. Co. v. France, 91 U. S. 510; Jeffries v. Ins. Co. 22 Wall. 47; Co-operative Ass. v. Leflore, 53 Miss. 1; and whether the insured is innocent is immaterial, McDonald v. Law, &c. Ins. Co. L. R. 9 Q. B. 328. See Moulor v. Am. Ins. Co. 101 U. S. 708; World Ins. Co. v. Schultz, 73 Ill. 586.- K. 2 Where there is a stipulation in the policy that the omission "to make known a material fact respecting the condition, situation, value, or occupancy of the property' If the contract is entire, although different subjects are insured, a false representation as to one will avoid the entire contract. (v) Concealment is the converse of representation. The insured is bound to state all that he knows himself, and all that it imports the insurer to know for the purpose of estimating accurately the risk he assumes. A suppression of the truth has the same effect as an expression of what is false. And the rule as to materiality, and a substantial compliance, are the same. (w) And we know no reason why the distinction above mentioned between fire policies and marine policies as to representation, should not be made for the same reason in regard to concealment. (x) Hamilton Ins. Co. 14 Gray, 459; Parker v Bridgeport Ins. Co. 10 id. 302. (v) Lovejoy v. Augusta Ins. Co. 45 Me. 472. insurer Curry v. Commonwealth Ins. Co. 10 Pick 537, 542. The rumor of an attempt to set fire to a neighboring building should be communicated. Walden v. La. Ins. Co. 12 La. 135. The insurer should be informed of any unusual appropriation of the building materially enhancing the risk. Clark v. Manufacturers Ins. Co. 8 How. 249. Where the plaintiffs underwrote a policy on the household goods and stock in trade of a party, and after being informed that the character of the insured was bad, that he had been insured and twice burnt out, that there had been difficulty in respect to his losses, and he was in bad repute with the insurance offices, effected a reinsurance with the defendants without communicating these facts; and the property insured was shortly after destroyed by fire; it was held, that there had been a material concealment, which avoided the policy, and whether occasioned by mistake or design was immaterial. N. Y. Bowery Ins. Co. v. N. Y. Fire Ins. Co. 17 Wend. 359. A pending litigation, affecting the premises insured, and not communicated, will not vitiate the policy. Hill v. Lafayette Ins. Co. 2 Mich. 476. (w) See Daniels v. Hudson River Ins. Co 12 Cush. 416; Lindenau v. Desborough, 8 B. & C 592; Pim v Reid, 6 Man. & G. 1; Columbian Ins. Co. v. Lawrence, 2 Pet. 49; Clark v. Manufacturers Ins. Co. 8 How. 248. The plaintiff, having one of several warehouses, next but one to a boat-builder's shop which took fire, on the same evening, after it was apparently extinguished, sent instructions to his agent by extraordinary conveyance for insuring that warehouse, without apprising the insurers of the neighboring fire. It was held, that although the terms of the insurance did not expressly require the communication of this fact, the concealment avoided the policy. Bufe v. Turner, 6 Taunt 338, 2 Marsh. 46. Where, pending the negotiations for a policy, the insurers expressed an objection to insuring property in the vicinity of gambling establishments, and the applicant knew at the time that there was one on the premises, it was held, that if, in the opinion of the jury, the risk was materially increased by such occupancy, the policy would be (r) Burritt v. Saratoga Co. Ins. Co. 5 avoided. Lyon v. Commercial Ins. Co. 2 Hill, 188; Gates v. Madison Co. Ins. Co. 1 Rob. La. 266. So it seems, that the fact Seld. 474; Clark v Manuf. Ins. Co. 8 How. that a particular individual had threatened 235; Cumberland Valley Ins. Co. v. Schell, to burn the premises, in revenge for a 29 Pa. 31. See Satterthwaite v. Mut. Ben. supposed injury, should be disclosed to the Ins. Assoc. 14 Pa. 393. shall invalidate the policy, the insured, in the absence of fraud, is not bound, unless asked, to disclose a lien for taxes. Alkan v. New Hampshire Ins. Co. 53 Wis. 136.-K. 1 Where a policy covers both realty and personalty, a misrepresentation regarding the former avoids the entire policy. Hinman . Hartford Ins. Co. 36 Wis. 159. A policy covering both real and personal estate is not to be held a divisible contract, part of which may remain in force, though the rest be invalid, where it is not perfectly clear that the insurer would have assumed both risks separately. Etna Ins. Co. v. Resh, 44 Mich. 55. See National Bank v. Insurance Co. 95 U. S. 673; Day v. Charter Oak Ins. Co. 51 Me. 91; Bowman v. Franklin Ins. Co. 40 Md. 620; Gottsman v. Insurance Co. 56 Pa. 210; Plath v. Minn., &c. Ins. Co. 23 Minn. 479. — K. 545 VOL. II. 35 * 436 * Matters of common information need not be communicated. (y) But any special circumstance, such as a great number of fires in the neighborhood, and the probability of belief that incendiaries were at work, should be communicated. (2) But the omission to disclose to the insurers repeated incendiary attempts to destroy the property insured after the insurance is effected, will not vitiate the policy, although the insurers have the right by the terms of the contract to terminate the same, if the continuance of the risk is considered unequal or injurious to the company. (a) Any questions asked must be answered, and all answers must be as full and precise as the questions require. Concealment in an answer to a specific question can seldom be justified by showing that it was not material. (b) Thus, in general, nothing need be said about title. But if it be inquired about, full and accurate answers must be made. (c)1 148. (a) Clark v. Hamilton Ins. Co. 9 Gray, (b) Burritt v. Saratoga Co. Ins. Co. 5 Hill, 188; Gates v. Madison Co. Ins. Co. 3 Barb. 73, 3 Comst. 43. In Loehner v. Home Ins. Co. 17 Mo. 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 con tract. 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. 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 r. 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. *It is often required that all buildings standing within *437 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) 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) North American Ins. Co. 1 Sandf. 551; Tyler v. Ætna Ins. Co. 12 Wend. 507, 16 id. 385. See also Hope Ins. Co. v. Brolaskey, 35 Pa. 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. (d) Burritt v. Saratoga Co. Ins. Co. 5 Hill, 188; Jennings v. Chenango Co. Ins. Co. 2 Denio, 75; Hall v. People's 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 Comst. 43, 1 Seld. 469; Allen v. (e) Trench v. Chenango Co. Ins. Co. 7 (f) Sexton v. Montgomery Co. Ins. Co. 9 Barb. 191. (g) Lewis v. Springfield Ins. Co. 10 Gray, 159. 66 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. r. Kelley, 32 Md. 421; Guest v. New Hampshire Fire Ins. Co. 66 Mich. 98; Penn. Fire Ins. Co. v. Dougherty, 102 Pa. 568: see Mers ». 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 Ia 325; or a vendee in possession, Bonham v. Iowa, &c. Ins. Co. 25 Ia. 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 ». 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 . St. Joseph, &c. 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 64 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; Susquehanna Mut. Fire Ins. Co. v. Staats, 102 Pa. 529.-K. 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. — K. 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 plaintiff's evidence. (h) Policies not unfrequently provide that fraud or false swearing shall forfeit all claims against the insurers. (hh) * 438 *SECTION II. OF THE INTEREST OF THE INSURED. The rule here is the same as in marine insurance. (i) Any interest which would be recognized by a court of law or equity, is an insurable interest; (j) but not a mere expectancy or proba (h) 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 pro vision, Wall v. Howard Ins. Co. 51 Me. 32. (i) The proof of an application for insurance and of a policy issuing thereon, both of which describe the property insured as the property of the plaintiffs, is prima facie evidence of title and of an insurable interest in the plaintiffs in an action upon the policy. Nichols v. Fayette Ins. Co. 1 Allen, 63. (j) Tyler v. Ætna Ins. Co. 12 Wend. 507, 16 id. 385; Swift v. Vt. Ins. Co. 18 Vt. 305. Where a moiety of a building insured by a company, was conveyed in fee, the grantor reserving a term of seven years therein, and the grantee immediately reconveyed the same to the grantor on mortgage, and the mortgagee demised it to the mortgagor and another for seven years, reserving rent, it was held, that the company was liable in case of loss, notwithstanding such conveyances. Stetson v. Mass. Ins. Co. 4 Mass. 330. See Morrison . Tennessee Ins. Co. 18 Mo. 262. Where a party holds the legal title, and the equitable title is in another, he has an insurable interest. Thus, where one has made an agreement for the sale of his real estate insured, but has not made a conveyance nor received the purchase 1 Commonwealth v. Hide & Leather Ins. Co. 112 Mass. 136; Sturm v. Atlantic Ins. Co. 63 N. Y. 77; Shaw v. Ætna Ins. Co. 49 Mo. 578. The test is whether a party may suffer loss. Cone v. Niagara Ins. Co. 60 N. Y. 619. The following have been held to have an insurable interest: one who has conveyed his land as security, taking an instrument of defeasance, Walsh v. Philadelphia Fire Ass. 127 Mass. 383; a mortgagor after foreclosure with a right to redeem, Cone v. Niagara Ins. Co. 60 N. Y. 619; the holder of an equitable title, Redfield v. Holland Ins. Co. 56 N. Y. 354; a mechanic's lienholder, Ins. Co. v. Stinson, 103 U. S. 25; a vendee in possession before price paid, Holbrook v. St. Paul Ins. Co. 25 Minn. 229; a creditor in the land of a debtor with insufficient personalty, Rohrbach v. Germania Ins. Co. 62 N. Y. 47; a sub-lessee, Fowle v. Springfield Ins. Co. 122 Mass. 191; a railroad in exposed property adjoining, Monadnock R. Co. v. Manufacturers' Ins. 113 Mass. 77; an obligor on a warehouse bond in the goods, Ins. Co. v. Thompson, 95 U. S. 547; a purchaser of goods not separated who had advanced the price to the seller on an agreement that the latter give them free storage, deliver them as wanted, and insure to protect advances, which was done in the purchaser's name, Cumberland Bone Co. v. Andes Ins. Co. 64 Me. 466; and a buyer of property under an agreement (in a note given for the purchase-money) stipulating that the title shall remain in the seller until the note is paid. Reed v. Williamsburg Ins. Co. 74 Me. 537. See Hidden v. Slater Ins. Co. 2 Clifford, 266, as to a lessor's insuring a lessee's interest.— K. |