on this question in the various courts of this country. The doctrine laid down by the highest tribunals of Massachusetts, Pennsylvania, and other states is that the subsequent insurance being invalid at the time of loss, by reason of the breach of condition therein, the prior insurance is good, and the first underwriter is liable on the policy issued by it. Thomas v. Insurance Co., 119 Mass. 121; Allison v. Insurance Co., 3 Dill. 480 (Fed. Cas. No. 252); Insurance Co. v. Holt, 35 0. St. 189; Knight v. Insurance Co., 26 O. St. 664 (20 Am. Rep. 778); Stacey v. Insurance Co., 2 Watts & S. 506; Jackson v. Insurance Co., 23 Pick. 418; Clark v. Insurance Co., 6 Cush. 342; Hardy v. Insurance Co., 4 Allen 217; Philbrook v. Insurance Co., 37 Me. 137; Lindley v. Insurance Co., 65 Me. 368 (20 Am. Rep. 701); Gale v. Insurance Co., 41 N. H. 170; Gee v. Insurance Co., 55 N. H. 65 (20 Am. Rep. 171); Insurance Co. v. Nichol, 35 N. J. Eq. 291; Schenck v. Insurance Co., 24 N. J. Law 447; Insurance Co. v. Slaughter, 20 Ind. 520; May, Ins., § 364. On the other hand, it has been held elsewhere that a subsequent policy, whether legally enforcible or not, or whether voidable on its face, or voidable for extrinsic matter, works a forfeiture of the prior policy. Carpenter v. Insurance Co., 16 Pet. 495; Allen v. Insurance Co., 30 La. Ann. 1386 (31 Am. Rep. 243); Somerfield v. Insurance Co., 8 Lea 547 (41 Am. Rep. 662) ; Funke v. Association, 29 Minn. 347 (13 N. W. Rep. 164; 43 Am. Rep. 216); Lackey v. Insurance Co., 42 Ga. 456; Bigler v. Insurance Co., 22 N. Y. 402; May, Ins., § 364. There is still an intermediate view, taken by the supreme court of Iowa in the case of Hubbard v, Insurance Co., 33 Ia. 325, to the effect that the question of the validity of the prior policy turns. upon whether the subsequent policy has in fact been avoided. If the second policy is recognized by the insurer issuing it to be a valid policy, any breach of condition being waived, this makes it a valid insurance, and avoids the first policy; but, if the subsequent policy has been rescinded for condition broken, there is no other insurance, so as to invalidate the prior policy. The obvious and insuperable objection to this latter view lies in the fact that it makes the validity of the contract between the parties under the first policy depend, not upon their own agreement, nor the effect of that agreement,

nor upon their own acts, nor the acts of either of them, but upon what another person (the second underwriter), a stranger to the first contract, may voluntarily do with respect to affirming or repudiating a totally different and distinct contract of insurance, without the slightest reference to any judicial inquiry as to the validity or invalidity of the second policy, or its resultant legal effect upon the first. Now as the parties to the first policy of insurance have, by the unequivocal terms employed in their contract, declared that, if the property insured should be thereafter insured by any other company, the first policy should be void, unless the second insurance were made known to the first insurer, and were indorsed on the policy written by it, or were otherwise acknowledged and assented to by it in writing, and as the manifest object and design of such a provision were to guard against the dangers supposed to be incident to a double or an over insurance, the natural and reasonable interpretation of this forfeiting condition would, aside from the adjudged cases, seem to prohibit a second valid insurance, and not a mere ineffectual attempt to procure additional insurance." A representation in an application for insurance that no other insurance existed on the property is not to be deemed false, in such a sense as to invalidate the insurance obtained on such application, merely because a former owner of the property, after having parted with his title, effected other insurance thereon in his own favor. State Ins. Co. v. New Hampshire Trust Co., 47 Neb. 62 (66 N. W. Rep. 9).

When

Sec. 410. Waiver of conditions of forfeiture. an application for fire insurance is oral, and no inquiries are made by the agent of the insurer as to the condition of the title to the property, and the insured says nothing about the existence of a mortgage thereon, but does not keep silent from any sinister motive, or with the intention to mislead or deceive the insurer, then the fact that there exists a mortgage upon the insured property will not invalidate the policy of insurance, notwithstanding that it provides that it should be void if there existed any incumbrance, by mortgage or otherwise, against the insured property. When an insurance company issues its policy, and accepts and retains the

H

premium, without requiring an application by the insured, and without making inquiry as to the condition of the property, or state of its title, and the insured has in fact an insurable interest, the company will be conclusively presumed to have insured such interest, and to have waived all provisions in the policy, providing for its forfeiture by reason of any facts or circumstances affecting the condition or title of the property in regard to which no such statement was required, or inquiry made. Hanover F. Ins. Co. v. Bohn, 48 Neb. 743 (67 N. W. Rep. 774; 58 Am. St. Rep. 719); Morotock Ins. Co. v. Rodefer, 92 Va. 747 (24 S. E. Rep. 393; 53 Am. St. Rep. 846). Where the agent of the insurer, at the time of writing the policy, knows that the title to the property is not in the insured, the insurer in an action upon the policy cannot take advantage of a clause therein forfeiting the rights of the insured if his title be other than the owner in fee simple. Carey v. Home Ins. Co., 97 Ia. 619 (66 N. W. Rep. 920); Schultz v. Caledonian Ins. Co., 94 Wis. 42 (68 N. W. Rep. 414); Robins v. Springfield Fire & M. Ins. Co., 149 N. Y. 477 (44 N. E. Rep. 159). A forfeiture may be waived by the subsequent acceptance of the premium. Wilson v. Mutual F. Ins. Co., 174 Pa. St. 554 (34 Atl. Rep. 122). Where a policy of insurance is based upon the condition that the insured is the owner in fee simple, but containing the provision that the application of the insured is to be considered a part of the policy, such application clearly showing that the insured is not the owner in fee simple, the insurer, by thus accepting the risk, waives the condition in the policy as to the title, and cannot set up the want of title to defeat an action on the policy. Davis v. Phanix Ins. Co., 111 Cal. 409 (43 Pac. Rep. 1115).

Where the agent of an insurance company who has knowledge that the provisions of a policy as to occupancy or incumbrances have been violated and has power to cancel it on account thereof permits the policy to continue, the company cannot enforce the forfeiture after loss. Clay v. Phanix Ins. Co., 97 Ga. 44 (25 S. E. Rep. 417). The policy of an insurance company issued by its agent with knowledge of facts as to title or occupancy of the premises, which by the terms of the policy would avoid the contract of insurance, is never

theless valid, since it is the fault of the agent that the conditions of the policy do not conform to the facts. Milwaukee Mechanics' Insurance Co. v. Brown, Kas. App. (44 Pac. Rep. 35). An insurance company is bound by the acts of its agent within the scope of his powers and where mistatements of facts were put in an application for insurance by the agent of the company without any misrepresentation to him by the insured the company cannot defend on the ground of the falsity of the statements. State Ins. Co. v. Du Bois, Colo. App. (44 Pac. Rep. 756). Where, at the time of issuing an insurance policy, the company knows that one of the conditions thereof is inconsistent with the facts, and the insured has been guilty of fraud, the company is estopped from setting up the breach of said condition. The same rule prevails when the insurance company ought to have known the facts constituting the alleged breach. Caldwell v. Fire Ass'n, 177 Pa. St. 492 (35 Atl. Rep. 612). As to when the insurer will be estopped by the declarations of its agent in case depending upon particular facts, see Highlands v. Lurgan Mut. Fire Ins. Co., 177 Pa. St. 566 (35 Atl. Rep. 728; 55 Am. St. Rep. 739). A condition in a policy avoiding it in case the insured's interest in the property was less than a fee simple estate was held to be waived by the agent where he had knowledge that the insured held only a life estate. Goss v. Agricultural Ins. Co., 92 Wis. 233 (65 N. W. Rep. 1036). For a case depending upon particular facts and illustrating what is a waiver of the conditions in a policy, see Kierman v. Dutchess Co. Mut. Ins. Co., 150 N. Y. 190 (44 N. E. Rep. 698).

Sec. 411. Insurance by mortgagee. A mortgagee of real estate has an insurable interest therein, which he may insure on his own account; and when he does so he insures, not the real estate, but his interest therein arising from his lien. One who has no title, legal or equitable, in property, and no present possession or right of possession therein, yet has an insurable interest therein, if he will derive benefit from. its continued existence, or suffer loss by its destruction. One who mortgages his real estate to secure the payment of a debt for which he is personally responsible, and subsequently con

veys the title of such real estate to another, subject to said mortgage, has an insurable interest remaining in said real estate. Hanover F. Ins. Co. v. Bohn, 48 Neb. 743 (67 N. W. Rep. 774; 58 Am. St. Rep. 719). Where a mortgage gives a mortgagee the right to take out insurance in order to protect his interests, an insurance policy procured by the mortgagee will be presumed to have been taken out in accordance with the terms of the mortgage. Washington Nat. Bank v. Smith, 15 Wash. 16 (45 Pac. Rep. 736).

Sec. 412. Mortgagee clause and construction thereof. Where two individuals represented that they were owners of the property sought to be insured, when, in fact, it was owned by a corporation, the capital stock of which they themselves owned, it was held not to be such a misrepresentation as avoided the rights of a mortgagee to assert its rights under a "union-mortgage" clause attached to the policy; the mortgagee having no knowledge of, or participation in, the said misrepresentation. North British & Mer. Ins. Co. v. Bohn, 49 Neb. 572 (68 N. W. Rep. 942). Where there is attached to a policy a mortgage clause making the loss payable to a mortgagee of the insured property therein named, and providing that the insurance should not be invalidated by acts or negligence of the mortgagor, it is held that such mortgage clause constituted an independent contract of insurance between the company and the mortgagee which could not be invalidated by the acts or omissions of the mortgagor whether they occurred at the time of the issuance of the policy or prior or subsequent thereto. Hanover F. Ins. Co. v. Bohn, 48 Neb. 743 (67 N. W. Rep. 774; 58 Am. St. Rep. 719). Where, by the terms of the policy of insurance, the loss, if any, is payable to a mortgagee as his interest appears at the time of the loss, the right of such mortgagee to maintain an action for such loss is not necessarily defeated by such misrepresentation in the application for insurance as, by the terms of the contract between the insurer and the insured, would defeat the right of the insured to maintain an action on his own behalf. State Ins. Co. v. New Hampshire Trust Co., 47 Neb. 62 (66 N. W. Rep. 9). In Massachusetts it is held that where the mortgage has been paid before the loss the