referred to therein, no variation in the descrip38*1 tion of the property insured from the *true description thereof, not made fraudulently, would vitiate the policy, unless by reason of such variation the insurance was made at a lower premium than would otherwise have been demanded.

The defendants then proved, by James Sanderson, the witness before sworn and examined on the part of the plaintiff, that, in making the insurance aforesaid, the defendants were not governed by the said printed rates of premium, and did not insure the said mill as a building under the class No. 4 of the said printed rates, though the same premium therein indicated was charged; but that the board, in their diseretion, fixed the premium as for an extra risk, considering the frequent accidents to mills, from the circumstances of millers being in the habit of grinding all night; and if the insurers had understood the mill to have been built with wooden instead of stone gable ends, it would have been at their discretion to have charged a higher premium, or to have declined the risk. And the plaintiff's counsel having argued to the jury upon the presumed authority of the court's opinion upon the second of the aforesaid instructions, moved by the counsel for the defendants, and overruled as aforesaid, that the misrepresentation of the class of the building insured, if found by the jury to be such as above objected on the part of defendants, did not vitiate or avoid the policy, either as a breach of warranty or misrepresentation, unless it had been designedly and fraudulently made, or had induced the defendants to insure at a lower premium than they would otherwise have done; and that, in fact, the insurance was done at the maximum rate indicated by the said printed rates.

the policy, unless by reason of such variation the insurance was made at a lower premium than would otherwise have been demanded. Whereupon the defendants prayed the opinion of the court, and their instruction to the jury, that the said J. W. Lawrence, as the survivor of the said Lawrence & Poindexter, if entitled, upon the principles aforesaid, to recover anything in this action, is not entitled to recover anything more than a moiety of the said loss. Which instruction the court also refused, and the defendants excepted.

Messrs. Jones and C. C. Lee, for the plaintiff in error, made the following points: 1. In order to fulfill either the general law of insurance against fire, or the contract of insurance in this case, or the averments of the declaration; the interest of the insured in the freehold estate that constituted the particular subject of insurance, should have consisted in a substantial ownership and proprietary right, legal or equitable; whereas nothing appears from the paper-muniments, which the plaintiff relied on as the sole evidence of such [*40 interest, but a naked pretense, or mere color of title.

2. If any technical estate, equivalent to an insurable interest, appeared, yet its essential quality, quantity and condition, were either positively misrepresented by the assertion of unqualified ownership and proprietary right; or were concealed, when a particular disclosure of the nature and condition of the interest was material.

Therefore, whether a total defect of interest appeared, or its essential attributes were either misrepresented or concealed, or the plaintiff failed in proving the more specific averment of interest in the declaration, the defendants were, at all events, entitled to the general instruction, against the plaintiff's right of action, asked of the court.

3. If these paper-muniments did import, prima facie, any insurable interest, the presumption was absolutely repelled by the facts proved on the other side; showing the supposed title in equity to have been merely nominal or colorable.

The counsel for the defendants thereupon prayed the opinion of the court, and an instruction to the jury, that if the jury find from the evidence that the materials and description of the mill, for the destruction of which this loss is claimed, as it actually existed at the time of insurance, differed from the representation of the same made by the plaintiffs, or their agents, at the time of effecting the said insur- Therefore, the direction to the jury asked ance, in this: that the walls at the two ends of by the defendants of the court on this point, 39*] the building, *all the way from the eaves should have been granted on the hypothesis of to the top of the roof, constituting what are proofs therein stated; not being liable to the commonly called the gable ends, were con-objection stated by the court, of referring matstructed of wood instead of stone, and that the risk from fire was greater with such wooden gable ends than if they had been constructed of stone, it ought to be deemed a material misrepresentation, and avoids the policy, whether such misrepresentation proceeds from fraud, or casual inadvertence in the assured; and, in such case, it is not necessary for the defendants to prove further that a higher premium would have been charged, if a true and accurate representation of the building, had been made; nor does it vary the effect of such misrepresentation, that the highest rate of premium stated in the said printed rates was actually charged for the said insurance.

Which instruction the court refused to give for the following reason: That, under the first of the rules annexed to the said policy, and referred to therein, no variation in the description of the property insured from the true description thereof, not made fraudulently, would vitiate

ter of law to the jury. On the contrary, the court in their positive direction to the jury, that the insured, under the circumstances supposed, had a substantial property in the subject of insurance, trenched more upon the province of fact, than the jury, under the required direction, would have done on that of law.

4. The preliminary tests of the claim of loss, required by the ninth fundamental rule above cited are strictly in the nature of a condition precedent; and cannot be dispensed with, but by an express discharge; consequently, the evidence or inference of a waiver by implication was inadmissible.

5. The declaration avers an actual compliance with the rule; therefore, no evidence of any dispensation from it, express or implied, was admissible.

6. The circumstances, from which such a waiver was inferred by the court in this [41 case, were wholly insufficient to raise any legal

or reasonable presumption to that effect; where- | Marshall, 221; Doug. 11; also 1 Chitty on
as, from the terms of the court's direction to Ins. 317, 18; 1 T. R. 638; Doug. 684, 687,
the jury, it must have been received by the
jury as a positive presumption or inference of
law from written evidence. The company were
in no
manner bound to communicate their
reasons for resisting the claim; and their reso- This writ of error is brought to a judgment
lution to resist it, notified as it was in general of the Court of the United States, for the Dis-
terms to the insured, covered the whole ground; trict of Columbia, sitting in the county of Al-
and was just as good notice, if any was re-exandria; which was rendered in a cause in
quired, of one defect as another in the claim.

7. The misrepresentation of the materials and construction of the building insured, was palpable and material; and the direction to the jury, asked by the defendants and refused The suit was brought on a policy insuring by the court on this point, properly referred a mill, stated in the representation and in the the fact of misrepresentation, and the circum-policy to belong to Lawrence & Poindexter, stances from which its materiality resulted, to the assured. Pending the suit, Poindexter died; the jury; the effect of such misrepresentation, and the suit was continued and tried in the and the result of materiality from the circum- name of Lawrence, the survivor. The verdict stances, to the court. and judgment were in favor of the plaintiff be8. The first of the said rules above cited, did low. At the trial, the court, *on the [*43 not reduce the materiality of misrepresenta- motion of the defendant's counsel, instructed tion in the policy to the alternative tests of the jury on several questions of law which were fraud, or of a consequent reduction in the rate made in the case; to which instructions the of insurance, as was ruled by the court; or if it counsel for the defendants in the Circuit Court did, then such reduction in the rate of insur-excepted, and the cause is now before this court ance was a necessary presumption from a lower risk, and was not to be proved, aliunde, as was also required by the court.

ray Forbes is not such a certificate as is re- | Jun., for the sale of one-half of the island, quired by the said ninth rule annexed to the mills, etc.; for which the said Poindexter agrees said policy, yet the evidence aforesaid is ad- to assume and take upon himself one-half the missible, competent, and sufficient to be left debts due from Howard and Lawrence to the to the jury; and from which they may infer banks in Fredericksburg; which were secured that the defendants waived the objection to by a deed of trust. the said certificate, and to the other preliminary proof aforesaid.

The counsel for the defendants in error have made some preliminary objections to the terms in which the opinion of the Circuit Court was asked. The counsel prayed the opinion and direction of the court to the jury, that the evidence offered by the plaintiff was not admissible, competent, and sufficient to be left to the jury as proof of the plaintiff's title to recover. This blending of an objection to the admissibility of evidence in the same application which questions its sufficiency, is said to be not only unusual, but to confound propositions distinct in themselves, and to be calculated to embarrass the court, and the questions to be decided. It is undoubtedly true, that questions respecting the admissibility of evidence, are entirely distinct from those which respect its sufficiency or effect. They arise in different stages of the trial, and cannot with strict propriety be propounded at the same time. If, therefore, the Circuit Court had proceeded no further than to refuse the instruction which was asked, this court might have considered the refusal as proper; unless the entire prayer, as made, ought to have been granted. But the Circuit Court proceeded to give its opinion on the different points made by counsel, and these opinions must be examined.

Nov. 29.-An agreement between Howard and Lawrence to work the mills in partnership. By the deeds of January 27, and Sept. 23, 1813, all the title of Joshua Howard to the island on which the mills insured were erected, passed to Joseph Howard and Joseph W. Lawrence. What was that title?

He held one-third part in his own right, and the remaining two-thirds as mortgagee.

The agreement of July 22, 1818, between Howard and Lawrence, does not appear to have been performed on the part of Lawrence; nor is there any evidence of his ability to perform it; but it does not appear [*46 that Howard has taken any step to avoid it, or has asserted any title in himself.

The agreement of Nov. 28, 1822, between Lawrence and Poindexter admits Poindexter to an undivided moiety of any interest Lawrence might have in the property.

Lawrence & Poindexter, then, when the insurance was made, were entitled to one-third of the property under the deed made by Charles Mortimer, and to the remaining two-thirds as mortgagees; but one moiety of the whole, which moiety was derived from Joseph Howard under the agreement of July 22, 1818, was held under an agreement which had not been complied with; and which purported on its face to be void if not complied with; but the other con1. The first is, that the interest of the as-tracting party had not declared it void, nor sured in the property insured, is a sufficient insurable interest to support the policy, and the averment of interest in the declaration.

The mill insured was built on an island in the Rappahannoc, which was demised by Charles Mortimer to Stephen Winchester for three lives, renewable forever, at the yearly 45*] *rent of £80 ($266.66); with a condition of re-entry for rent in arrear, etc.

1801, Dec. 19.-S. W. conveyed one undivided third part to Richard Winchester, and another undivided third part to Joshua Howard.

1806, May 9.-R. and S. Winchester conveyed to Joshua Howard, by deed of mortgage in fee, their two-thirds of the said island, with other property to a considerable amount, in order to secure the said Howard to the amount of $40,000.

1813, Jan. 27.-Joshua Howard conveyed the whole island to William and George Winchester. 1813, Sept. 23.-William and George Winchester conveyed the island to Joseph Howard and Joseph W. Lawrence.

1818, July 22.-Joseph Howard entered into an agreement with Joseph W. Lawrence, by which the said Lawrence was to take the island, etc., at the price of $30,000; for which amount in debts, due from Howard & Lawrence, he was to procure a release; on his doing which, Howard was to execute a deed for the property; on the failure or inability of Tawrence to procure this release the contract was to be void.

1822, Nov. 28.-Joseph W. Lawrence enters into an agreement with Thomas Poindexter,

called for a compliance with it.

It cannot be doubted, we think, that the assured had an interest in the property insured. Lawrence had an unquestionable title to a moiety of one-third, subject to the rent reserved in the original lease, and to a moiety of the remaining two-thirds as mortgagee. had such title to the other moiety as could be acquired by an agreement for a purchase, the terms of which had not been complied with.

He

The title is thus stated, because those words which declare the contract to be void if Lawrence should fail to comply with it, do not, we think, render it absolutely void, but only voidable. No time for performance is fixed; and if Howard is content with what has been done by Lawrence, and does not choose to annul the contract, the underwriters of this policy cannot treat it as a nullity. Lawrence, having this title under an executory contract, sells to Poindexter one undivided moiety of the property. These two persons, being both in possession, partly under legal conveyances and partly under executory contracts, require an insurance on it against loss by fire. Had they an insurable interest?

That an equitable interest may be insured is admitted. We can perceive no reason which excludes an interest held under an executory contract. While the contract subsists, *the [*47 person claiming under it has undoubtedly a substantial interest in the property. If it be destroyed, the loss, in contemplation of law, is his. If the purchase money be paid, it is his in fact. If he owes the purchase money, the property is its equivalent, and is still valuable to him. The

rence & Poindexter, and held under a lease or an executory contract, would be generally spoken of by themselves and others as their mill. The property alluded to would be well from this mode of designating it. But if Lawrence & Poindexter should proceed to sell the property as theirs, should describe it in the contract as belonging to them, no court would compel the purchaser to take the title they could make.

embarrassment of his affairs may be such that his debts may absorb all his property; but this circumstance has never been considered as proving a want of interest in it. The destruction of the property is a real loss to the person in pos-understood, and no inconvenience could arise session, who claims title under an executory contract, and the contingency that his title may be defeated by subsequent events does not prevent this loss. We perceive no reason why he should not be permitted to insure against it. The cases cited in argument, and those summed up in Phillips on Insurance, 26, on insurable interest, and in 1 Marshall, 104 ch. 4, and 2 Marshall, 787, ch. 11, prove, we think, that any actual interest, legal or equitable, is insur

able.

The assured, then, have not proved "such an interest as is described in the original offer for insurance;" and the Circuit Court, in this respect misdirected the jury. It may be [*49 proper to take some notice of the materiality of this misdirection.

2. Having declared the interest of Lawrence & Poindexter to be insurable, the Circuit Court The contract for insurance is one in which instructed the jury that "it is such an interest the underwriters generally act on the represenas is described in the original offer for insur- tation of the assured; and that representation ance, and in the policy, and in the declaration." ought consequently to be fair, and to omit The original offer for insurance was in these nothing which is material for the underwritwords: "What premium will you ask to insure ers to know. It may not be necessary that the the following property belonging to Lawrence person requiring insurance should state every & Poindexter, for one year against loss or dam-incumbrance on his property, which it might age by fire? On their stone mill four stories be required of him to state if it was offered for high, covered with wood, on an island about sale; but fair dealing requires that he should one mile from Fredericksburg in the county of state everything which might influence, and Stafford; the mill called Elba Mill. Seven probably would influence the mind of the unthousand dollars are wanted. Not within thirty derwriter in forming or declining the contract. yards of any other building, except a corn- A building held under a lease for years about house, which is about twenty yards off." to expire, might be generally spoken of as the The policy states that the underwriters in-building of the tenant; but no underwriter insured the plaintiffs $7,000 against loss or would be willing to insure it as if it was his; damage by fire, to the amount of $7,000 on and an offer for insurance, stating it to belong their stone mill, etc. to him, would be a gross imposition.

The declaration charges that the defendants insured the plaintiffs $7,000 against loss or damage by fire on their stone mill, etc.; and avers that they were interested in, and the 48*] *equitable owners of the premises insured as aforesaid at the time the insurance was made as aforesaid, etc.

The material inquiry is, does the offer for insurance state truly the interest of the assured in the property to be insured? The offer describes the property as belonging to Lawrence & Poindexter; and states it afterward to be their stone mill. It contains no qualifying terms, which should lead the mind to suspect that their title was not complete and absolute. The plaintiffs in error contend that the terms import an absolute legal estate in the property; and that the insurers entered into the contract, having a right to believe that the interest of the assured was of this character. Instead of such an estate in the property as the representation justified the insurers in expecting, the proof shows that the insured held only one-half of one-third, under a lease for three lives, renewable forever, and one-half of the other two-thirds as mortgagees; that the other moiety was held under a contract, the terms of which had not been complied with; and which, if complied with, would give them a title to two-thirds of that moiety only as mortgagees.

The defendants insist that the representation is satisfied by an equitable title under an executory contract, and that in truth and in fact, the mill did, at the time of its insurance and loss, belong to Lawrence & Poindexter.

Generally speaking, insurances against fire are made in the confidence that the assured will use all the precautions to avoid the calamity insured against, which would be suggested by his interest. The extent of this interest must always influence the underwriter in taking or rejecting the risk, and in estimating the premium. So far as it may influence him in these respects, it ought to be communicated to him. Underwriters do not rely so much upon the principles as on the interest of the assured; and it would seem, therefore, to be always material that they should know how far this interest is engaged in guarding the property from loss. Marshall, in treating on insurance against fire (p. 789, b. 4, ch. 2), says: "It is not necessary, however, in order to constitute an insurable interest, that the insured shall in every instance have the absolute and unqualified property of the effects insured. A trustee, a mortgagee, a reversioner, a factor or agent, with the custody of goods to be sold upon commission, may insure; but with this caution that the nature of the property be distinctly specified."

In all the treaties on insurances, and in all the cases in which the question has arisen, the principle is that a misrepresentation which is *material to the risk, avoids the policy. [*50 In this case the Circuit Court has decided that there is no misrepresentation; that the interest of the assured was truly described in the offer for insurance; and consequently no question on the materiality of the supposed variance was submitted to the jury.

As this court is of opinion that a precarious title, depending for its continuance on events It may be true, that a mill occupied by Law- which might or might not happen, is not such

a title as is described in the offer for insurance, | the mill. No objection was made to the preconstruing the words of that offer as they are liminary papers. The custom of the board fairly to be understood; the Circuit Court has was, if the claim for indemnity was thought in this respect misdirected the jury. just, to refer the preliminary papers to their secretary to see if they were regular. In this case no such reference was made.

3. The third opinion given to the jury is that the evidence given by the plaintiff in the Circuit Court was admissible, competent, and sufficient to be left to the jury, and from which they may infer that the defendants waived the objection to the said certificate, and to other preliminary proof aforesaid. The certificate to which this instruction refers, is, by one of the rules which form conditions of the policy, declared to be an indispensable requisite; without the production of which, the loss claimed "shall not be payable." A certificate intended by the assured to satisfy this condition, accompanied the proof of loss; but it is not such a certificate as the condition requires; and such was the opinion of the Circuit Court. The testimony which the court left to the jury as being sufficient to authorize them to infer a waiver on the part of the insurers of this certificate, consisted of entries on the minutes of the board, with some parol proof.

From the first presentation of the papers in February, till the passing of the final resolution in June, the claim was pending undetermined before the board, waiting for the advice of counsel. This advice being delayed by the absence *and other engagements of counsel, [*52 an agreement was entered into with the agent of the assured, that if the final resolution should be to resist the claim, the suit should be put as forward on the docket as if brought to the intervening April term. This agreement was complied with. All the orders and resolutions of the board which have been stated were communicated by the witness to the agent of the assured; and are the only communications which he was authorized to make.

According to the invariable usage of the bond, the sufficiency of the documents offered by way of preliminary proof of loss, as required On the 20th of February, 1824, the claim of by the ninth article of the rules annexed to the Lawrence & Poindexter was submitted to policy, was not to be considered by the board the board with the policy and certificate of till the principle of the claim should have been loss. admitted, and then the course was to submit On the 13th of March, an order was made, such documents to the secretary for a special requiring the title papers of Lawrence & Poin-report thereon; in this case the sufficiency of dexter to the Elba Mill. On the 1st of April, copies of the deed from William and George Winchester to Joseph Howard and Joseph Lawrence, of the agreement between Howard and Lawrence and of the agreement between Law rence and Poindexter, were laid before the 51*] *board. On the 16th of April, further proof respecting the title was required, which was produced on the 22d of the same month.

The opinion of Mr. Jones was taken on the case, which was submitted to the board on the 28th of June, when it was resolved "that the claim of Lawrence & Poindexter be resisted; and that the secretary furnish them with a copy of this resolution."

The opinion of Mr. Jones turns on the interest of the assured, and on the question whether the loss was fair or fraudulent.

On the 11th of November, inquiry was made whether the board would enter into a compromise, "it being understood that the agreement" "is not to be considered as an admission of the claim." Answered "yes."

On the 18th of November, the board passed a resolution declining a compromise, which was communicated to the agent of Lawrence & Poindexter.

On the 11th of December, a farther and more specific proposition for a compromise was made by the agent of the assured, which was rejected by the company.

The secretary of the company was examined, to prove the communications between him and the agent of the assured. When the documentary evidence was exhibited, he informed the agent that he would call a board to decide on the claim. After the board had met and adjourned, he informed the agent that the claim would probably be resisted; that the company thought the interest of the assured was not insurable; that the representation was not faithful; and that Poindexter had set fire to

the documents was never discussed or considered by the board, nor referred to the secretary. It never was contemplated by the witness, nor to his knowledge, by the board, to waive any compliance with this ninth article. The consideration of the documents offered under it did not regularly come on till the claim should be admitted in principle.

The agent of the assured was present at some of the meetings of the board when the witness was absent. He has understood that on these occasions the communications between them turned entirely on questions respecting the fundamental objections to the claim. The regu larity or irregularity of the preliminary proof was never mentioned. The opinion given by counsel was never communicated to the assured or their agent. To have done so, would have been contrary to the rules and to usage.

This evidence was left to the jury as testimony from which they might infer that the preliminary proof, required by the ninth rule annexed to the policy, as indispensable to entitle the assured to demand payment for a loss, had been waived by the underwriters.

It will not be pretended that any expression is to be found either in the resolutions of the board or in the conversations *held by [*53 their secretary with the agent of the assured, having the slightest allusion to this preliminary proof or to the waiver of it. If, then, the jury might infer a waiver, the inference must be founded on the opinion that the board was bound to specify this particular objection; or that they have taken some step or made some communication, which presupposes an acquiescence in the certificate which was offered.

The resolution of the board to resist the claim is expressed in general terms, and consequently applies to every part of the testimony offered in support of it. We know of no principle nor usage which requires underwriters to