2 Cushman v. United States Ins. Co. 70 N. Y. 72; Miller v. Mut. Ben. Ins. Co. 31 Ia. 216.

binding upon them; and the effect of it would seem to be to give to representations the force and influence of warranties. (j) l

By the charters of many of our mutual insurance companies, the company has a lien, to the amount of the premium note, on all property insured. It is obvious, therefore, that no such description can be given, or no such language used, as would induce the company to suppose they had a lien when they could not have one, or would in any way deceive them as to the validity or value of their lien. In all such cases, all incumbrances must be stated, and the title or interest of the insured fully stated, in all those particulars in which it affects the lien. (k)

*If one of the insured has taken an assignment of a first mortgage on the property insured, in trust for all the parties insured, and has completed a negotiation for the purchase of the interest of the mortgagee in a second mortgage, under which the title has been perfected by a foreclosure, a statement by the plaintiffs, in the application for insurance, that they are mortgagees' in possession, will not avoid the policy. (l) And where two partners in an application for insurance on a building, which was required to contain "a full, fair, and substantially a true representation of all the facts and circumstances respecting the property, so far as they are within the knowledge of the assured, and are material to the risk," stated that they owned the land on which it stood, whereas the legal title was in one of them, and the other was charged on their books with half the cost, and the partnership was afterwards dissolved, and all that owner's interest in its assets transferred to his copartner, to whom the insurers, with notice of the facts, agreed that the policy should stand good, it was held, that the insurers were liable for loss by a subsequent fire. (m) l And an applicant for insurance on personal property, who has made, but not delivered, a bill of sale thereof, intending to take in return a promissory note secured by mortgage thereon, may truly warrant himself to be the owner. (n)

(j) Burritt v. Saratoga Co. Ins. Co. 5 Hill, 188; Williams v. New England Ins. Co. 31 Maine, 224; Murdock v. Chenango Co. Ins. Co. 2 Comfit. 210; Sexton v. Montgomery Co. Ins. Co. 9 Barb. 200; Kennedy v. St. Lawrence Co. Ins. Co. 10 id. 285; Houghton v. Manufacturers Ins. Co. 8 Met. 114; Lee v. Howard Ins. Co. 3 Gray, 583; Macomber v. Howard Ins. Co. 7 Gray, 257.

(k) See Brown v. Williams, 28 Maine, 252; Smith v. Bowditch Ins. Co. 6 Cush. 448; Lowell v. Middlesex Ins. Co. 8 id.

127; Allen v. Charlestown Ins. Co. 5 Gray, 384; Jenkins v. Quincy Ins. Co. 7 id. 370; Mat. Ass. Co. v. Mahon, 5 Call, 517; Phillips v. Knox Co. Ins. Co. 20 Ohio, 174; Addison v. Kentucky Ins. Co. 7 B. Mon. 470; Smith v. Columbian Ins. Co. 17 Penn. State, 253; Warren v. Middlesex Ass. Co. 21 Conn. 444; Egan v. Mut. Ins. Co. 5 Denio, 326; Fletcher v. Commonwealth Ins. Co. 18 Pick. 419; Masters v. Madison Co. Ins. Co. 11 Barb. 631

(l) Nichols v. Fayette Ins. Co. 1 Allen, 63. See Wyman v. Peoples Ins. Co. id. 301.

1 Graham v. Fireman's Ins. Co. 87 N. Y. 69. Where an application is made a part of the contract and its contents warranties, a misrepresentation as to the amount of incumbrances on certain property avoids the policy. Schumitsch v. American Ins. Co. 48 Wis. 26.

There seems to be this difference between marine policies and fire policies. In the former a material misrepresentation avoids the policy, although innocently made; in the latter, it has this effect only when it is fraudulent. This distinction seems to rest upon the greater capability, and therefore greater obligation, of the insurer against fire to acquaint himself fully with all the particulars which enter into the risk. For he may * do this either by the survey and examination of an agent, or by specific and minute inquiries. (o)

The question whether a statement which is relied on, be material, and whether there is or has been a substantial compliance with it, seems to be for the jury rather than for the court. (p) 2 But it is not unfrequently determined by the court as a matter of law. (q) 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

(m) Collins v, Charlestown Ins. Co. 10 Gray, 155.

(n) Vogel v. Peoples Ins. Co. 9 Gray, 23.

(o) Burritt v. Saratoga Co. Ins. Co. 5 Hill, 188; Gates v. Madison Co. Ins. Co. 2 Comet. 49; Holmes v. Charlestown Ins. Co. 10 Met. 214; Insurance Co. v. Southard, 8 B. Mon. 648.

(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. Maine Ins. Co. 33

Maine, 242; Campbell v. New England, etc. Ins. Co. 98 Mass. 381.

(q) Carpenter v. American Ins. Co. 1 Story, 57, 16 Pet. 495,4 How. 185; Columbian Ins. Co. v. Lawrence, 2 Pet. 25; Houghton v. Manufacturers Ins. Co. 8 Met. 114.

(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.

1 But where a partner contributes real estate as his share, but without any conveyance, the firm cannot describe it as "theirs." Clay Ins. Co. v. Huron, etc Co. 31 Mich. 346; Farmers' Ins. Co. v. Curry, 13 Bush, 312.

2 But for neither, if the parties agree that any falsity of statement in the application shall avoid, AEtna. 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, etc. Ins. Co. L. R 9 Q B. 328. See Moulor v. Am. Ins. Co. 101 U. S. 708; World Ins. Co. v. Schuhz, 73 Ill. 586.