[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 510 The defendant claims that the description of the house insured as a dwelling was a warranty that it was occupied as such. Unless there was evidence to show misrepresentation or concealment as to the fact of occupation, there is no ground for such a position. The defendant had ample opportunity to ascertain how the fact was, and having failed to improve it by making inquiries through its agent, or *Page 512 to make provision in the policy for such a case, it cannot now claim that the insurance was for a building which was occupied contrary to the plain meaning and import of the language employed.
The claim that the neglect of the insured to make known the fact that the building was vacant and unoccupied was a breach of the condition is also unfounded. The provision in the policy that any omission to make known any fact material to the risk should render it void, in the absence of proof of fraud, is not violated because the insured fails to disclose facts in regard to which no inquiry is made. The applicant has a right to suppose that the insurer, in making inquiries as to particular facts, considers all others to be immaterial, or that he assumes to know or waives information in regard to them. (Gates v. Madison Co. Mut. Ins.Co., 5 N.Y., 475.) If the insurer fails to inquire as to occupation, unless there is proof of concealment, it is not evidence of bad faith which will vitiate the policy. Under such a state of facts, when no statement is made in the policy as to the occupation of the building, it must be assumed that the insurance was made without regard to occupation.
The exclusion of Wicks' admission, contained in the complaint in the suit which he brought against Bowman, and of his admission to Dorr was not erroneous. The defendant's liability had then become fixed, and the plaintiff had acquired rights and a cause of action against the defendant, which the declarations or acts of Wicks could not affect or change.
It does not appear whether the alleged conversation related to a delivery of possession before or after the fire had taken place, and hence it is not manifest that the evidence offered was material.
The claim made that the policy was void by the transfer to Bowman is not sustained. The contract was executory, and by its terms the conveyance was not to be made until the 18th of June, some time after the fire occurred, and certain conditions had been fulfilled by Bowman. It did not transfer title to the land, and could only be enforced by *Page 513 Bowman by a compliance with its conditions. The forfeiture could only attach if the property was sold or transferred, or in case of a change in the title or possession. Until the agreement was consummated, there could be no such change as was contemplated by the policy. There was no change or sale within the meaning or language of the policy, which expressly provides, that when the property has been sold and delivered, or otherwise disposed of, so that all interest or liability on the part of the assured has ceased, the insurance shall terminate. This evidently means a legal transfer, which divests the party of title or control over the property. The authorities cited by the appellant's counsel are not adverse to this view of the subject.
The judgment should be affirmed.
All concur.
Judgment affirmed.