Opinion of the Court,
Wall, J.This was an action upon a policy of insurance against loss by fire.
The plaintiff recovered and the defendant has brought the record to this court by appeal.
The property covered by the policy was a barn and its contents. It was a condition of the policy that the entire policy should be void “ if the interest of the assured be other than unconditional and sole ownership, free from all liens whatever, or if the subject of insurance be a building on ground not owned by the assured in fee simple.”
The plaintiff had not the interest here required. She was the widow of Hayden E. Dowdall, deceased, who, by his will, devised the land on wdiich the barn was situated to the plaintiff, “ to have and to hold until August 1, 1894,” provided, if she should marry before that date, then she should take her dower, etc. It is sought to support the claim on the ground that she had an insurable interest, but this is no answer to the objection that she had not such an interest as the policy required.
In her application it is stated that she had title by warranty deed. This application was drawn np by the soliciting agent of the company, and by her testimony, it appears that she did not make such a statement of her title, though it is not perfectly elear what she did say to him in that regard. She seems not to remember very distinctly.
If the only point were whether there was a misrepresentation. in the statement that she had title by warranty deed, the verdict of the jury would perhaps be conclusive. But a warranty deed might or might not liave given her such a title as the policy required. If it appeared that the agent of the company knew what her title was, though she stated It imperfectly or not at all, another aspect would be presented. It does not so appear, and there is nothing from which we can infer that he understood the title. At the most there is a failure to show that the true nature of the title was disclosed, and knowing what it was, the company, by its agent, made the contract of insurance. The condition on this subject contained in the policy is a valid one and is justified by sound reasons. It is not desirable that persons in possession of property for a term of years should be permitted to insure it as though they were the absolute owners. The hazard in such case would, of course, be very great, owing to the temptation to burn the property for the sake of the insurance. After a careful examination of the case as presented by the record and by the briefs of counsel, we are unable to see any plausible excuse for disregarding this condition of the policy. We are of opinion the court erred in its instructions to the jury on this point, and in refusing the motion for a new trial. The judgment will be reversed and the cause remanded.