The opinion of the court ivas delivered by
Parker, J.The suit is to recover loss by fire which plaintiffs claimed to be covered by a policy issued by the defendant company.
*588The policy was issued in the names of Max Herman and Wolfe Fisher, as their respective interests might appear, for a term of one. j'ear from October 8th, 1912.
On February 14th, about three p. si., Fisher and. Gottlieb delivered a deed conveying the property to the two Swillers, the' present plaintiffs, who also received the written policy, and about four p. m., of the same day, they gave it to their insurance broker, named Levine, with directions to have the ownership transferred to their names. Levine was not the agent of the company. That agent was a corporation named Meilson T. Parker, Inc. Levine did not go to Parker for an endorsement of change of interest until the next morning when the endorsement was made. In the meantime, the fire had occurred. The stipulation of facts shows that when Levine presented the policy for endorsement of new ownership, neither Parker, Inc., nor the compány knew of the fire having taken place, and Levine did not inform Parker of it.
On this state of facts' the trial judge, sitting without jury, held that, although in his estimation the policy was not originally enforceable because Fisher had no interest in the property at the time of its issue, or thereafter, yet plaintiffs were entitled to recover, on the theory, as he stated it, that the question was not one of waiver of the invaliditj of the original policy, but of practically new insurance; and that instead of writing a new policy for the remaining portion of the policy (term?) the company extended the old insurance to the new owners.
We think that this was error. It may be conceded that by endorsing the new ownership on a policy which the company could have voided for misstatement of original ownership, or for transfer of ownership to the Swillers without such endorsement, the company entered’ into a fresh contract with said new owners’to insure them for the remainder of the term, and that the premium originally paid was a valid consideration therefor. But when did the remainder of the term begin ? In order to uphold the decision below, it is necessary to say that it began when the deed to the Swillers was delivered. Doubtless, the company could have so agreed, but *589the question is. What agreement did it actually make by the endorsement? The only reasonable answer, as it appears to us, is, that in the absence of some special stipulation the insurer’s consent to change of ownership must be construed as operating to protect the new owner from the time it is given; and that time is ordinarily when it -is affixed by the company or its authorized agent, and that it does not relate back to any prior time when the ownership in fact changed, or, in other words, that the insurer does not, by assenting to the change of ownership, assume the liability for a loss occurring before that consent was given, of which it knew nothing, and for which, as the policy stood without its consent, it was not liable.
The ease is not within-the rule in Hallock v. Insurance Company, 26 N. J. L. 268; 27 Id. 645, for, in that case, the application was made for insurance and premium tendered to the agent before the fire occurred, for a term to begin at the date of the application, and the policy was so written. There was, consequently, in that case, no room for argument as to what the company agreed to, and the main question was whether' it was relieved from the agreement because the fire had occurred without its knowledge before it had formally entered into it.
One of the defences set up in the pleadings, and not contradicted as to the facts, was that the policy contained a provision that unless otherwise provided by agreement endorsed thereon or added thereto, it should be void if any change, other than by the death of the insured, take place in the interest, title or possession of the subject of insurance, &e., and that by the conveyance to the Swillers such change took place and vitiated the policy. On the trial defendant requested the court to find that the foregoing clause was a warranty, of which there had been a broach by the conveyance to the Swillers -which had not been waived by an endorsement on the policy or addition thereto; and further, that the endorsement in question, placed on the policy after the fire, did not constitute such waiver because the company had no knowledge or notice of such fire. These requests were either overruled *590or confessed and avoided by the decision placing the judgment upon the ground, not of waiver, but of new insurance. As the case stands before us, defendant is entitled to attack both the refusals of the court and its specific findings of law injurious to defendant. It is not necessary to pass upon the question whether by the language of the policy insuring Herman and Eisher as their respective interests appeared, the policy, though void as to Eisher, would be good as to Herman. It might even be conceded for the sake of argument that they might have recovered for the loss. The simple question before us is, Was the company under a contractual liability to the Swillers for a loss after title vested in them, and before the endorsement of change of ownership? The trial court held that it had agreed to such liability by its endorsement made after the fire and without knowledge thereof. This we consider erroneous, for reasons already stated; and for this error the judgment must be reversed.