Page:Federal Reporter, 1st Series, Volume 1.djvu/405

 aUMSEY V. PHŒNIX INSUBANCE CO. 397 �loss was, by the terms of the policy, payable to the plaintif, "as his interest may appear." �The policy contains the following conditions: "Any false representation by the assured of the condition, situation or occupancy of the property, or any omission to make known every fact material to the risk, or an overvaluation or any misrepresentation whatever, either in a written application or otherwise, or if the property be sold or transferred, or any change take place in title or possession, whether by legal process, judicial decree, Toluntary transfer, or conveyance; or if the assured is not the unconditional and sole owner of the property, or if the interest of the assured in the prop- erty whether as owner, trustee, consignee, factor, mortgagee, lessee, or otherwise, is not truly stated in this policy, then and in every such case this policy shall be void." �After the policy was issued, and before the loss, Zimmer failed to make payments according to his contract with plain- tief, and moved ont of the dwelling. The dwelling was there- after occupied by tenants. The question of fact was sub- mitted to the jury, whether Zimmer had surrendered or abandoned his contract to the plaintiff, with instructions that if there had been such surrender or abandonment the plaintiff could not recover. The jury found there had been no sur- render or abandonment, and, by implication, that the tenants who occupied the promises were Zimmer's tenants. A ver- dict having been found for the plaintiflf the defendant now moves for a new trial. �It is insisted for the defendant that the policy is void, because Zimmer was simply a vendee, in possession of the premises under an executory contract to purchase of the plain- tiff, when the policy issued, and teterefore "not the uncon- ditional and sole owner of the property," within the conditions of the policy. It is also insisted that because Zimmer stated to defendant's agent, at the time of applying for the Insurance, that he "wished his house on Porter street insured," without stating specifically the nature of his interest, there was "an omission to make known every fact material to the risk," with- in the conditions ^which render the policy void. These ob- ��� �