Page:Federal Reporter, 1st Series, Volume 10.djvu/245

 ■WALLER V. NORTHERN ASSURANCE 00. 233 �' If Ihe interest of the assured in the property be any other than the entire, iLnconditional, and sole ownership of the property for the use and benefit of the assured, or if the building stands on leased ground, it must be so repre- sented to these companies, and so expressed in the written part of this policy ; otheivvise the policy will be void." �It appeared on trial, and the fact was found by the jury, that the interest of the assured was that of a mortgagee only, though he beid by a deed unconditional on its face and was in possession. When the assured applied for the insurance no inquiries were made by the company's agent, and no representations were made as to the nature and extent of the plaintiff's interest in the property, and there was no statement in the policy concerning the same. The property was found by the jury to be of the value of $8,000 or |9,000, and it is eonceded that the interest of the assured therein was much less, be- ing only about $5,000. Plaintiff moves to set aside the general ver- dict in favor of defendant upon the ground that it is inconsistent with the general findings, which are in substance stated above. �Shiras, Van Duzee e Hcnderson, for plaintiff. �Finke de Lyon, for defendant. �McCrart, C. J. The policy provides that "if the interest of the assured in the property be any other than eutire, unconditional, and sole ownership of the property for the use and benefit of the assured, • * * it must be so represented to the insurer, and so expressed in the written part of the policy, otherwise the policy will be void." The interest of the assured in the property insured in the present case was not an entire, unconditional, and sole ownership, but on the contrary he held only a lien in the nature of a mortgage given to secure a loan of some $5,000. This fact was not repre- sented by the assured to the defendant, and is not stated in the policy. �There is no proof tending to show that the defendant was aware of the fact. On the contrary, it clearly appears that the plaintiff's mortgage, so far as the record disolosed the facts, is a secret lien, being a conveyance absolute on its face ; and since it was accompanied by actual possession in the mortgagee, there was nothing to rebut the presumption that he was the absolute and sole owner. These cir- cumstances made it the duty of plaintiff to disclose the nature of his interest, even if it were eonceded that a mortgagee out of possession, and whose interest is disclosed by the record, might be excused from so doing. There are strong reasons for upholding and enforcing the provision of the policy under consideration. It is certainly a very ��� �