It is expressly required in the body of the policy, under which the plaintiffs claim, that “ the interest of the assured, whether as owner, consignee, factor, lessee or otherwise, in the property insured, shall be truly stated in the policy, otherwise the same shall be void.” This makes a true statement in the policy, in this respect, essential to its validity. The question is, not whether the plaintiffs had an insurable interest in the property, but whether that interest is correctly stated.
The building insured was of brick, with stone foundations and cellar underneath, standing upon Callender’s land, of which the plaintiffs were sub-lessees. Without express agreement with the owner of the land, such a building, as soon as erected by the lessees, would become a part of the realty by operation of law. There was no such agreement in this case; on the contrary, the original lease from Callender to Herman, who underlet to the plaintiffs, contained a provision that the lessee might remove the buildings then standing on the site of the building in question and build others in their stead, with a covenant that such future erections should be kept insured for the benefit of the lessor, and should be delivered up to him at the end of the term. Milton v. Colby, 5 Met. 78. Hutchins v. Shaw, 6 Cush. 58. Howard v. Fessenden, 14 Allen, 124. The plaintiffs themselves were nnder no obligation to rebuild in case of fire, or to insure fcr the *197benefit either of Callender, the original lessor, or of Herman* who leased to them. Them contract was with Herman. If he was bound to effect such insurance, his failure to do so may render him liable to Callender, but does, not affect the relations of the plaintiffs to the property. They only covenanted in their lease from him to quit and deliver up the premises to him, with all future erections, at the end of the term, in good order, fire and other unavoidable casualties excepted.
The plaintiffs’ policy provides for insurance on “their two story brick and gravelled roof building, occupied by them for a carpet store, situate on leased land.” This does not correctly state the plaintiffs’ interest. It necessarily implies that they' were absolute owners of the building by agreement with the owner of the land on which it stands, or that they bore such relation to it by contract, that the whole loss of it by fire would fall on them as owners of the whole equitable interest in it; it does not convey the idea that they only have a leasehold interest in it of only a short duration. The difference is material and important. If the building had been the property of the plaintiffs, which they could remove or sell t"\the landowner at the end of the lease, or if they were bound to insure or rebuild for the benefit of another, the fact would bear directly upon the risk. Instead of this, the plaintiffs had only a leasehold interest in both land and building. The parties have a right to stipulate that the precise nature of the interest insured shall be stated in the policy, and the clause relied on in the terms used plainly discloses that the distinction between an interest as owner and as lessee is regarded as material. This case is to be distinguished from those where the policy makes no call for an exact statement of the title or interest of the insured, and where it is held that a general statement of ownership, when there is no intentional concealment or fraud, is enough, though the title may be conditional, or less than a fee simple, or subject to incumbrance, or only an equitable title. Draper v. Charter Oak Ins. Co. 2 Allen, 569. Strong v. Manufacturers' Ins. Co. 10 Pick. 40. Curry v. Commonwealth Ins. Co. 10 Pick. 535. Williams v Roger Williams Ins. Co. 107 Mass. 377. Hough v. City Ins. Co. 29 Conn. 10.
*198The legal title to the property may not always determine the interest sufficiently to support the policy which the assured has on it; but if he is described as owner, under a condition which requires that interest to be truly stated in the policy, he must at least have such an equitable interest that the whole loss would fall on him if the property is destroyed.
The case of Williams v. Roger Williams Ins. Co. is, m my opinion, not in conflict with this result. The property was there charged with a trust, in the hands of the assignee of the note and mortgage, in favor of a firm who were liable as indorsers of the note. Their equitable interest in the estate was precisely coextensive with the interest of the assignee of the mortgage. They obtained insurance for the protection of that interest only, but were described in the policy as mortgagees. They recovered on the policy, and it was declared by the court that the provision in question “ does not call for a distinction between legal and equitable title, but only for a true statement of the nature of the insurable interest; and that interest was the same, whether the title of the assured was legal or equitable.”
In the case at bar, the interest of the plaintiffs is described by a word which, of all others, expresses ownership in the building, as distinct from a leasehold interest, while the case finds that they had neither legal nor equitable title as owners of the building. The language used implies that, as to the plaintiff’s interest in the building and the land on which it stands, there is the difference of owner and lessee.
In Hope Ins. Co. v. Brolaskey, 35 Penn. St. 282, the buildings insured were described truly as the plaintiff’s buildings ; the insured had a right to remove them at the end of the term; and it was held that the insured was not bound to disclose that they were on leased land; because the building was insured, not the land.
I am obliged to differ from the majority of the court in the result reached, and am authorized to say that Mr. Justice Devens concurs in this dissent.
Judgment for the plaintiff».