Page:Federal Reporter, 1st Series, Volume 2.djvu/438

 BAMSEY V. PHŒNIX INS. 00. 431 �"omission to make known every fact material to the risk," within the conditions which render the policy void. The objections to plaintiff's right to recover may be considered together, and may be disposed of by the answer that Zimmer was the equitable owner of the property, and was the nincon- ditional owner, except as to the plaintiff, and plaintiff's inter- est was sufficiently indicated by notice that he had such an interest in the premises that the loss would be payable to him. �A party in possession of insured premises under a valid subsisting contract of purchase is the equitable owner, and bas an insurable interest, although he has not paid the whole oonsideration money. He is not guilty of a misrepresentation if he represents the house as his when he applies for insuranee, and there is no breach of warranty if the house is described as "his dwelling-house" in the policy. The statement and, the state of facts are consistent with eaeh other, There is no misrepresentation, because an intent to deceive cannot be inferred. There is no breach of warranty, because the repre- sentation is true in substance. Strong v. Manufrs Ins. Co. 10 Pick. 40; MtnaFire Ins. Co. v. Tyler, 16 Wend. 385; Davis T. Quincy Mutual Fire Ins. Co. 10 Allen, 113; Niblo v. North American Ins. Co. 1 Sandf. 551 ; Laidlow v. Liverpool, etc., Ins. Co. 13 Grant Ch. 377. �It was not incumbent upon Zimmer to make a fuUer disclosure of his interest in the premises when he applied for insuranee. His failure to do so was not an "omission to naake known a fact material to the risk," within the mean- ing of the policy. This clause in the policy is to be read with the other clauses of which it forms part, and applying the maxim "noscitur a sociis" the word "omission" is equivalent to concealment in the contemplation of the policy. The cases cited are authorities to the efifect that in view of Zimmer's interest as equivalent owner of the premises, in the absence of specifie inquiry, he communicated ail that was material to the risk, and was not bound to specify the precise extent or nature of his interest. The fact that Zimmer moved ont of the dwelling-house and let it to tenants is not a defence ����