Page:North Dakota Reports (vol. 48).pdf/559

 It is the contention and defense of the defendant that the policy became void because: (1) The hazard was increased; (2) the interest of the insured was not unconditional and sole; (3) there was a change in interest, title, and possession of the subject of insurance through the mortgages upon the property; (4) that material facts concerning the subject of insurance were misrepresented; (5) that plaintiff practiced false swearing concerning insurance after the loss; (6) that the property became and remained, for a period of 10 days, vacant or unoccupied. The only defense worthy of consideration, in our opinion, is that which concerns vacancy or unoccupancy [sic]. There is no evidence sufficient to warrant overruling the findings of the trial court concerning the other defenses. The insurance policy does not provide that the existence or making of a real estate mortgage is a ground of forfeiture. In this state the giving of a real estate mortgage creates neither a change of interest, title, or possession. There is no showing of any increase of hazard except that which concerns vacancy or unoccupancy. However, concerning the question of vacancy or unoccupancy [sic], defendant strenuously attacks the credibility of plaintiff’s testimony. Defendant does not contend that the building was set on fire, but maintains that plaintiff’s inconsistent statements concerning the time of the fire and his whereabouts at such time, and concerning the property destroyed, and the general lack of definiteness in his testimony, serve to place in jeopardy the correctness of the trial court’s finding upon the question of vacancy and to establish a preponderance of proof in favor of the defendant, showing grounds of forfeiture by reason of unoccupancy [sic]. The policy provides that it shall be void if the building be or become vacant or unoccupied and so remain for 10 days. The terms “vacant” and “unoccupied” are not synonomoussynonymous [sic]. The former term generally refers to inanimate objects; the latter, to animate occupancy. 14 R. C. L. 1103; 19 Cyc. 729. The house was not at any time vacant from the date when the insurance was written until the time of the fire. The personal belongings of the plaintiff and of his deceased wife, the furniture of the home, all continued to remain in the home place. The amount of loss sustained by the plaintiff on his home and household goods appears to be considerable in excess of insurance thereupon. Plaintiff explains about not being around the premises when at work over at his father’s, concerning boarding up the windows so as to protect against cattle rubbing against the same, and about locking the doors.

This testimony was not necessarily unreasonable in view of the fact