The defendant corporation is a mutual fire insurance company. The plaintiff in his application for insurance stated that the estate to be insured was unincumbered when in fact it was incumbered by a mortgage. This statement being false, the presiding judge ruled that the policy was thereby avoided.
It had been repeatedly held, prior to the act of 1862, c. 115, that misrepresentations as to the title of the person insured were material and avoided the policy. Pinkham v. Morang, 40 Maine, 587; Battles v. York Co. Mut. Ins. Co., 41 Maine, 208; Gould v. York Co. M. F. Ins. Co., 47 Maine, 403.
By the act of 1862, c. 115, re-enacted in the revision of 1871, c. 49, § 19, it is provided that “ any misrepresentation of the. title or interest of the insured, in the whole or a part of the property insured, real or personal, unless material and fraudulent,” shall not prevent his recovering on his policy to the extent of his insurable interest.
By c. 49, § 21, “ The provisions in the foregoing sections relating to the amount of capital stock to be owned by an insurance company, and the division of the same into shares and dividends of profits thereon, and other provisions incidental to the nature of its fund, and such of said provisions as relate to the liability of directors or stockholders in case of a deficiency of capital, and the regulations concerning the business of any such company, contained in sections eight and nine, shall not be construed as applicable to mutual fire insurance companies; but the other preceding and following provisions shall be binding on such companies so far as consistent with their charters.”
No inconsistency is shown or alleged to exist between this statute and the charter of the defendant corporation. The provisions of R. S., c. 49, § 19, are expressly made applicable.
Whether the misrepresentation as to title was material or fraud*417ulent was a question to be determined by the jury. So, too, if there was fraud in the proof of loss, it should hayo been submitted to the jury. Both these questions were withdrawn from their consideration. According to the agreement of the parties the entry must be Action to stand for trial.
Cutting, WaltoN, Dickerson, and Baeeows, JJ., concurred.