tained in the policy, to the same extent as if the clause declaring the loss payable to him had not been inserted. Perry v. Lorillard F. Ins. Co. (1874) 61 N. Y. 214, 19 Am. Rep. 272.

In Kabrich v. State Ins. Co. (Mo.) supra, in which it was held that an alienation of the insured premises by the mortgagor avoided the policy as to the mortgagee to whom the proceeds were made payable, it was further held that it mattered not who might have applied to the insurer to secure the insurance, or who might have paid the premium; that the terms of the written agreement fixed the contracting parties, and the conditions upon which the loss was to be paid.

However, notwithstanding a provision avoiding a policy if the property be sold or transferred or any change takes place in the title or possession, the death of the insured will not cut off from the protection which the policy affords the interest of the mortgagee of the insured, to whom the loss was made payable as his interest might appear. Westchester F. Ins. Co. v. Dodge (1880) 44 Mich. 420, 6 N. W. 865. And the court said in that case that it was not called upon to decide whether the death of the insured before the loss occurred rendered the policy void.

Attention may be also called to Illinois F. Ins. Co. v. Stanton (1870) 57 Ill. 354, where, as a defense to an action on a policy issued to the mortgagor, "loss, if any, payable" to the mortgagee, the insurance company pleaded as a defense that the policy had been forfeited by a violation of a provision against alienation, but on demurrer the court held the plea bad for a failure to aver that the sale was made before loss occurred, and that it was not assented to or confirmed by the directors of the insurer. And foreclosure sales, constituting violations of forfeiture conditions in insurance policies, avoid the policies as to the mortgagee. McKinney v. Western Assur. Co. (1895) 97 Ky. 474, 30 S. W. 1004 (even though the mortgagee was purchaser); Brunswick Sav. Inst. v. Commercial Union Ins. Co. (1878) 68 Me. 313, 28 Am. Rep. 56;

Woodard v. German-American Ins. Co. (1906) 128 Wis. 1, 116 Am. St. Rep. 17, 106 N. W. 681; Pinhey v. Mercantile F. Ins. Co. (1901) 2 Ont. L. Rep. 296.

And to the same effect, see Moore v. Hanover F. Ins. Co. (1894) 141 N. Y. 219, 36 N. E. 191, reversing (1893) 71 Hun, 199, 24 N. Y. Supp. 507, where the policy specifically provided for a forfeiture if foreclosure proceedings were begun. The court said that, though the policy was to be payable to the mortgagee as his interest might appear, yet the contract of insurance was with the mortgagor, and the undertaking to pay the loss to the mortgagee collateral and dependent upon the principal undertaking, so that, in case of a breach of conditions by the mortgagor, the mortgagee could not

recover.

2. Against other insurance. Procuring other insurance in contravention of a condition forbidding this prevents the mortgagee, under a loss-payable clause, from recovering on the policy procured in his favor. United States.

Friemansdorf v. Watertown Ins. Co. (1879) 9 Biss. 167, 1 Fed. 68; Sias v. Roger Williams Ins. Co. (1880) 8 Fed. 187.

California. Holbrook v. Baloise F. Ins. Co. (1897) 117 Cal. 561, 49 Pac. 555. Illinois. Continental Ins. Co. v. Hulman (1879) 92 Ill. 145, 34 Am. Rep. 122. Indiana.

Franklin Ins. Co. v.

Canada.

Livingstone v. Western Ins. Co. (1869) 16 Grant, Ch. 9.

Thus, in Continental Ins. Co. v. Hulman (Ill.) supra, it is said: "The loss, which was made payable to the plaintiffs, was one which was payable under and by virtue of the policy, and in accordance with its terms and conditions, one of which was that if the assured, who were John and Sarah J. Ryan, should have or make any other contract of insurance, whether valid or not, upon the property, then the policy should become void, and consequently no loss payable. There was such other insurance here, a violation by the assured of this condition, -and no loss was recoverable under the policy. . . The import of the defendant's agreement was to pay to the plaintiffs any loss to which the Ryans might be entitled under their policy, to the extent of plaintiffs' claim as mortgagees. But the Ryans were not entitled to any loss under the policy, and hence there was nothing payable to the plaintiffs."

In Warbasse v. Sussex County Mut. Ins. Co. (N. J.) supra, it was said that the intimation of the circuit court that unauthorized acquisition, by the party insured, of additional policies in contravention of conditions of the policy, could not affect the rights of the mortgagee to whom the policy was payable, had no foundation in the decisions of the New Jersey court. Further, it was said: "The rule of law is settled that a direction in the policy that the money, if it becomes due, is to be paid to a designated person, does not alter the agreement of insurance in any respect except in the one particular of appointing a denominated person to receive such payment. It is still the owner of the premises who is insured, and the continued validity of the policy is dependent upon the performance by him of the conditions embraced in it."

3. Against vacancy.

A violation by the mortgagor of a provision in a policy issued payable to the mortgagee as his interest may appear, forbidding the insured to permit the property to become vacant, prevents recovery on the policy by the mortgagee. Agricultural Ins. Co. v. Hamilton (1895) 82 Md. 88, 30 L.R.A. 633, 51 Am. St. Rep. 457, 33 Atl. 429; Franklin Sav. Inst. v. Central Mut. F. Ins. Co. (1876) 119 Mass. 240; Williams v. Pioneer Co-op. F. Ins. Co. (1918) 183 App. Div. 826, 171 N. Y. Supp. 353.

4. Nonpayment of premiums.

Sending a policy to the insured on his promise to remit the premiums does not estop the insurer from denying its validity, for nonpayment of a premium, as against the mortgagee to whom "loss, if any, is payable," although he received the policy which acknowledged receipt of the premium from the insured, without notice that the premium was unpaid. Union Bldg. Asso. v. Rockford Ins. Co. (1891) 83 Iowa, 647, 14 L.R.A. 248, 32 Am. St. Rep. 323, 49 N. W. 1032. The court states: "While the state of the law on this subject is somewhat confused by a statement in some cases of abstract rules, we have found no case in which the party designated in a policy to which the loss, if any, is made payable, whether he be designated as an assignee or as an appointee to receive the money (both of such terms being employed in the case), is entitled to recover where under the facts the assured could not. The language under which the payment can be claimed and the authorities lead to the conclusion that the rights of such a party depend on the liability of the company to the assured."

And in Antes v. State Ins. Co. (1900) 61 Neb. 55, 84 N. W. 412, where the insurer had failed to pay premium notes at maturity, and the. policy, which was indorsed payable to the plaintiff as mortgagee as her interest might appear, provided that the insurer should not be liable for loss occurring while any premium note

should be due and unpaid, it was contended that the mortgagor's failure to pay premium notes of which the mortgagee had no notice would not bar the mortgagee's right of recovery, as she stood in a different position. In answering, the court stated: "We regard the mortgagee as standing in no more favorable light than an assignee of the policy of insurance to the extent of her interest in the property insured by virtue of her mortgage thereon, and her rights with respect to the litigation are to be gauged by, and rest upon, the contract of insurance entered into by the insured and insurer. There are times, it is true, when a mortgagee of insured property may claim where no right would exist in favor of the insured mortgagor; but this arises out of the terms and nature of an agreement between the insurer and mortgagee, and which do not enter into the present case, where the mortgagee can only claim through, and by reason of, the original contract of insurance with the mortgagor."

And to the same effect is Blanchard v. Atlantic Mut. F. Ins. Co. (1856) 33 N. H. 9, holding the mortgagor's failure to pay assessments, where the by-laws of the insurance company provided for a suspension of the risk in such a case, prevented a recovery on the policy by a mortgagee to whom it was made payable.

But where a policy issued by a mutual insurance company, in addition to a loss-payment clause, imposed upon the mortgagee the duty of paying assessments required from the assured, upon the latter's default to pay upon demand, making the mortgagee liable absolutely for such assessments, but not limiting the time within which he might pay it, as it did in case of

the assured, it was held in Francis v. Butler Mut. F. Ins. Co. (1862) 7 R. I. 159, that such failure to specify the time within which the assessment must be paid by the mortgagee, and the fact that he was absolutely liable for them, continued the policy as to him, after it had been forfeited by the mortgagor for nonpayment of the assessment.

c. Acts subsequent to loss.

While the mortgagee's right of recovery under an indorsement on a policy issued to the mortgagor, making the loss payable to the former, may be defeated by any breach of conditions by the assured before loss occurs, it cannot be defeated by an act of the assured after the loss has occurred. Bergman v. Commercial Union Ins. Co. (1891) 12 Ky. L. Rep. 942. Specifically as to the effect on mortgagee's rights of acts of mortgagor subsequent to the loss, see annotation on the subject, "Adjustment of loss by agreement between mortgagor and insurer as affecting mortgagee under loss-payable clause," following First Nat. Bank v. National Liberty Ins. Co. post, 383.

In Browning v. Home Ins. Co. (1877) 71 N. Y. 508, 27 Am. Rep. 86, affirming (1876) 6 Daly, 522, it was held that a statement by an insured, made after a fire, as to a sale by him of the premises subsequent to the issuance of the policy and contrary to its terms, was not admissible against the mortgagee under a loss-payable clause in an action on the policy, the court stating that upon the loss the defendant's liability had become fixed and the mortgagee had acquired rights in a cause of action which the declarations of the mortgagor could not affect or change. G. S. G.

Plaintiffs were not bound by the adjustment between the insurance company and defendant Lavick, the mortgagor.

Newman v. Springfield F. & M. Ins. Co. 17 Minn. 123, Gil. 98; Sanford v. Mechanics Mut. F. Ins. Co. 12 Cush. 549; 13 Am. & Eng. Enc. Law, 2d ed. 204; Erie Brewing Co. v. Ohio Farmers Ins. Co. 25 L.R.A. (N.S.) 740, note, and 135 Am. St. Rep. 747, note; Citi

zens State Bank v. Shawnee F. Ins. Co. 91 Kan. 18, 49 L.R.A. (N.S.) 972, 137 Pac. 78; Browning v. Home Ins. Co. 71 N. Y. 508, 27 Am. Rep. 86; Han over F. Ins. Co. v. Brown, 77 Md. 64, 39 Am. St. Rep. 386, 25 Atl. 989, 27 Atl. 314; Tilley v. Camden F. Ins. Asso. 139 La. 985, 72 So. 709; Brown v. Roger Williams Ins. Co. 5 R. I. 394; Hathaway v. Orient Ins. Co. 134 N. Y. 409, 17 L.R.A. 514, 32 N. E. 40; Leslie v. Firemen's Ins. Co. 60 Misc. 558, 112 N. Y. Supp. 496; McDowell v. St. Paul F. & M. Ins. Co. 207 N. Y. 482, 101 N. E. 457; Hall v. Fire Asso. of Phila. 64 N. H. 405, 13 Atl. 648; Harrington v. Fitchburg Mut. F. Ins. Co. 124 Mass. 126; Bergman v. Commercial Assur. Co. 92 Ky. 494, 15 L.R.A. 270, 18 S. W. 122; Georgia Home Ins. Co. v. Stein, 72 Miss. 943, 18 So. 414; Wilcox v. Mutual F. Ins. Co. 81 Minn. 478, 84 N. W. 334, 1 Clement, Fire Ins. p. 38, Rule 11.

Hallam, J., delivered the opinion of the court:

On July 18, 1921, defendant in

surance company insured defendant Lavick for $1,800 against loss by fire or theft of his Westcott automobile. The amount was later reduced to $1,600. The car was mortgaged to plaintiffs to secure payment of the purchase price of $1,250. On November 8, 1921, while the insurance policy was still in force, the car was stolen and totally destroyed by fire. Lavick made proofs of loss, and the insurance company adjusted the loss with him at $840. The car was at that time worth $1,150. Plaintiffs were not parties to the adjustment. The amount due on their mortgage was $1,150, and they brought action to recover that amount from the insurance company.

The court found that, "as an inducement for the issuance of said policy," Lavick represented to said insurance company "that said automobile actually cost him $1,800, and said insurance company, in reliance upon said statement and believing the same, issued and delivered to defendant Lavick" said policy. The court then found that Lavick purchased said car from plaintiff Motor Sales Company "for the agreed price of twelve hundred and fifty ($1,250) dollars." It will be noticed that the court found the "price" paid to plaintiff sales company, and the representation as to what the car "cost" Lavick. There is no finding that the "cost" to Lavick was no more than the purchase price. In fact, there is evidence to show that there were other items of cost in the way of equipment. It is perhaps fair to assume, however, that the court intended to find that the representation of the insured was untrue.

1. The principal point raised by defendant is that the policy was "rendered null and void prior to the loss, by reason of breach of warranty on the part of the assured." In other words, defendant seeks to treat the statement in the application as a warranty, and to invoke the common-law doctrine that a breach of a warranty in a policy of