
    Robert Curry versus The Commonwealth Insurance Company.
    E. L.,, having bought a shop, placed it upon his father’s land and occupied it as his dwellinghouse. He died, and afterwards, upon the death of his father, the land, with this and another house upon it, descended to the two daughters of E. L. as tenants in common, both of whom were married. The husband of one of them gave the plaintiff, who was the husband of the other, a sum of money for the choice of the houses, and he chose the house last mentioned. The plaintiff thereupon occupied the house first mentioned, as his own, and built an addition to it. It was held, that the plaintiff having a freehold in the land and the exclusive right of occupation and disposal of this house, a representation of the house as his own property, on procuring it to be insured, though not strictly accurate, was not such a misrepresentation as would render the policy void, there being no intentional deception and no over-estimate of the value of the house.
    If the assured does not communicate facts within his knowledge which increase the risk, the policy will be void, although he did not suppose the facts to be material.
    Whether alterations or additions made to a house insured against fire, increase the risk or not, is a question for the jury.
    Where a policy of insurance against five provided that the insurer “ should not be liable for more than the sum insured in any case whatever,” and he paid for repairing a partial loss, and afterwards a total loss happened, it was held that he was liable for no more than the difference between the sum already paid and the whole sum insured.
    And where, In the same policy, one sum was insured on one building, and another on another, and both losses were upon the same building, it was held that the insurér was liable for only the difference between the sum paid and the sum insured on that building alone.
    Assumpsit upon a policy of insurance against fire, by which the defendants assured the plaintiff $ 1500, viz. 1000 upon his dwellinghouse in Beverly, and 500 upon other buildings and tools and lumber therein. The policy was dated February 19th, 1829, and was for one year.
    The cause was tried before Putnam J.
    The action was brought to recover $ 1000, the sum insured upon the dwellinghouse, which was totally consumed by fire on May 29th, 1829.
    About the year 1789, Ezra Lovett bought a shop, which he placed on land of his father, John Lovett,, and occupied as his dwellinghouse. In 1816, Ezra and John being both dead, the heirs of John made a division by indenture, of his real estate, by which Anna, the wife of the plaintiff, and Hannah, the wife of Josiah Raymond, took one half as the heirs of Ezra, as tenants in common. There were two houses on the land whuh thus came to Anna and Hannah, and in 1817, by a receipt dated August 10th, it appears that Josiah Raymond paid to the plaintiff $ 100 for the choice of the houses. The smallest, which was the shop bought by Ezra, falling to the plaintiff, he moved it back upon the lot, and built an addition to it towards the street ; making thereby the dwellinghouse which was insured. Josiah Raymond testified that he and the plaintiff owned their houses as above stated, and occupied them in severalty, but that the land whereon they stood belonged to their wives in common. No writing was produced concerning the houses, except the receipt above mentioned. The plaintiff, at the time when the policy was made, was, and for more than ten years before had been, in the several occupation of the dwellinghouse, claiming it as his own ; and there were a garden and a yard adjoining which were occupied by him in severalty with the house. There was no written division of the land which descended to Anna and Hannah.
    The defendants contended that this was not sufficient to prove that the dwellinghouse belonged to the plaintiff; but the judge ruled that it was sufficient.
    The policy stipulates, that “in case of any loss, the same is to be paid without any deduction, in sixty days after proof thereof.” It appeared that notice of the destruction by the fire, and verbal information of the plaintiff’s title to the house, had been given to the defendants, and a claim for payment of the loss had been made upon them, more than sixty days before the action was commenced ; and no other proof had been called for by them. As, however, no documentary evidence had been produced, they contended at thé trial, that they had not sufficient proof of property and loss, before the action was brought. But the judge ruled that the notice and evidence of loss and of interest, preparatory to the action, were sufficient.
    The defence then was made upon two grounds : —first, that there had been a material concealment; and secondly, that there had been such an alteration and addition to the house as increased the risk, without any consent of the defendants in writing.
    The alleged concealment consisted in the plaintiff’s having reason to believe that his dwellinghouse was in danger from a particular individual who had threatened to burn the house, to revenge a supposed injury, and omitting to disclose it before the policy was made. The judge reported at length the evidence on this point, from which it appeared, that in November 1828, the plaintiff caused one Quiner, who had escaped from the state prison, to be arrested and taken back, and that Quiner, on his way to the prison, in custody of the plaintiff and a constable, uttered threats of revenge by setting buildings on fire, in case he should ever find out who had informed against him.
    In regard to the second ground of defence, the policy pro-, vides, that “ if the situation or circumstances affecting the risk upon the property, shall be so altered or changed, by or with the advice, agency or consent of the assured, as to increase the risk thereupon, the risk hereupon shall cease and determine, and the policy be null and void, unless confirmed by a new agreement thereupon written after a full knowledge of such facts and circumstances.” It was proved, that when the policy was made, the plaintiff’s barn stood within sixteen feet of the house ; that the plaintiff told the defendants’ agent he intended to remove the barn further back, and to make an addition to the house, and inquired whether it would make any alteration in the premium, and was informed by the agent that it would not, if the plaintiff should give him notice concerning it; that in April 1829 the plaintiff’s barn was burnt, and afterwards he made an addition to the back part of the house, of about 25 feet by 11 feet, two stories high ; that after the barn was burnt, the plaintiff sent a message to the defendants’ agent, which was contained in a note written by one Crosbie embracing another subject, that the plaintiff had begun to build a woodshed ; that this message was left on the agent’s desk, he being absent at the time; that Crosbie afterwards met the agent in the street, and mentioned the contents of the note, and the agent said “ very well” ; giving Crosbie to understand that he was satisfied. The plaintiff introduced many witnesses, who all concurred in the opinion that the risk wras not increased by the addition to the house, beyond what it would have been if the barn had been rebuilt, without making the addition to the house.
    The jury were instructed, that if they believed the facts relating to the arrest of Quiner and his conversations to be material, that is, that they would have increased the risk, or would have prevented the defendants from taking the risk, they should find for the defendants, notwithstanding the plaintiff did not suppose there was any particular reason to fear from them; and that they should find for the defendants, if they believed that the plaintiff had made such alterations and additions to the house as increased the risk.
    In the policy, the defendants insure $ 1000 on the dwelling-house against all loss or damage to the same by fire, “ provided, that the said company shall not be liable for more than the sum insured, in any case whatever.” When the barn was burnt, the house also was injured, and the defendants paid $ 142 to repair the damage. The jury were directed, if they should find for the plaintiff, to allow the whole sum insured on the house ; but the defendants contended, that under the above clause in the policy, $ 142 should be deducted.
    The jury found a verdict for the plaintiff for $ 1000 and interest, subject to be altered if the deduction of $ 142 ought to be made.
    The defendants excepted because of supposed misdirections, and because the verdict was against evidence.
    
      Nov. 17th.
    
    
      King and L. Thorndike, for the defendants.
    The dwelling house was annexed to the land, and the plaintiff had only a life estate in one undivided half in right of his wife. Elwes v. Maw, 3 East, 38 ; Van Ness v. Pacard, 2 Peters’s Supr. C. Rep. 143. The plaintiff, no doubt, had an insurable interest, but he ought to have described it correctly. By representing his estate to be a fee simple, he might procure insurance to a greater amount than the value of his interest, and thus he would have an inducement to be careless, in order to turn his interest into money. Columbian Ins. Co. v. Lawrence, 2 Peters’s Supr. C. Rep. 25.
    At most the plaintiff is not entitled to recover more than the value of his life estate. 2 Marsh. (Condy’s ed.l 685, 686 ; 
      Lawrence v. Sebor, 2 Caines’s R. 203; Phillips on Ins. 27 ; Gardner v. Bedford Ins. Co. 17 Mass. R. 613.
    In regard to concealment, the counsel admitted that the instruction to the jury was correct, but they contended that the verdict was against the evidence.
    The addition made to the house was a material alteration, which rendered the policy null and void, there being no written assent of the defendants upon the policy. Worsley v. Wood, 6 T. R. 710 ; 1 Marsh. (Condy’s ed.) 167 ; Pelly v. Royal Exch. Ass. Co. 1 Burr. 351 ; Maryland Ins. Co. v. Le Roy, 7 Cranch, 27.
    According to the proper construction of the policy, the defendants are not to be liable for successive losses, in the aggregate, beyond the sum insured upon the dwellinghouse.
    
      Saltonstall and Choate, contrà,
    
    contended that the dwelling-house was personal estate, belonging wholly to the plaintiff. Marcey v. Darling, 8 Pick. 283 ; Ashmun v. Williams, ibid. 402 ; Doty v. Gorham, 5 Pick. 487 ; Wells v. Banister, 4 Mass. R. 514 ; Bostwick v. Leach, 3 Day, 476 ; Parker v. Staniland, 11 East, 362. Raymond, upon his testimony, was estopped to claim any title to the house. Co. Lit. 352 b; Nichols v. Arnold, 8 Pick. 172. It may be said that building a house on the wife’s land makes it her property, so that the husband’s administrator cannot dispose of it. Washburn v. Sproat, 16 Mass. R. 449. But here the land does not belong solely to the wife; and we are to regard the title while the husband is living. Unquestionably the plaintiff might have removed his house from the land and sold it for his individual benefit. But however the technical title may be, the plaintiff had a title defacto, which was sufficient. Phillips on Ins. 28 ; Lockyer v. Offley, 1 T. R. 260.
    As to the alteration made in the house, they cited Stetson v. Mass. Mut. F. Ins. Co., 4 Mass. R. 337.
    If this were a marine risk, there would be no deduction from the total loss, on account of the repairs of the previous partial loss ; Phillips on Ins. 329, 330; and whether such deduction is to be made in the present case, depends on the clause in the policy, that the insurers shall not be liable for more than the sum insured, in any case whatever. The sum insured is $ 1500, and the policy means that the losses are not to exceed that sum; without intending to confine the successive losses on a building to the sum insured on that particular building.
   Wilde J.

afterward drew up the opinion of the Court. The only point of any difficulty in this case involves a question of fact, which should have been submitted to the jury, if the defendants intended to insist upon it in defence. It is objected^ that a false representation was made of the plaintiff’s title, in answer to one of the interrogatories in his application for insurance. He there represents'the house insured as his property, and the defendants’ counsel contend that he had no property therein, except in right of his wife, and in- common with her sister.

It is true, that this representation was not strictly accurate and full; but a representation may be so, if fairly made and true in substance, without vitiating the policy. “ A false jep^ resentation (says Marshall) is no breach of the contract, but if material, avoids the policy on the ground of fraud, or at least because the insurer.has been misled by it.” A representation is not like a warranty, which must be strictly complied with, but it must be shown to be false in a material point, or it will not make void the policy. Marsh, on Ins. (1st ed.) 335 ; Pawson v. Watson, Cowp. 785. The benefits and security derived from contracts of insurance against fire have become so general, and the relief they are calculated to afford is so great, that they are not to be set aside on slight exceptions ; especially when the conduct of the assured appears fair and free from any imputation of fraud. In the present case there is certainly no ground for charging the plaintiff with fraud, or with any intentional deception ; but it is said that the defendants have been in fact misled by the erroneous representation of the plaintiff’s title. • Of this the jury were the proper judges ; and although the point, as now stated, does not appear to have been made at the trial, yet as all the evidence in relation to it was submitted to the consideration of the jury, the verdict must be decisive, unless the decision of the judge, as to the sufficiency of the evidence of the plaintiff’s property, should be considered incorrect. It was his opinion that the evidence was .sufficient, and we all concur in that opinion.

It is not denied, that if the house was a chattel, it was the plaintiff’s property. And it was a chattel, if it be true that the plaintiff had no property in the land. The house was partly built by him, and he had absolute dominion over it ; he might remove it when and where he pleased, without being account able therefor to any one. He might elect, therefore, to treat it as personal property and to represent it as such. But if the house was not a chattel, still wo think it was the plaintiff’s property. He had a freehold estate in the land, and the exclusive right of occupation. By the common law, a husband seised of land in the right of his wife might alienate it by feoffment, and the wife could not enter, but was driven to her action cui in vita. Lit. § 594. And so he might make a tenant of the praecipe without his wife’s joining him in a fine. Bac. Abr. Baron $• Feme, C 1, note. It is not necessary that the plaintiff should show that he had a fee simple estate, or an indefeasible estate. A tenant in tail may well represent the land of which he is seised, as his property ; but at common law he had really only an estate for life, for he could not control the descent ; but it is considered an estate of inheritance, because it descends to heirs. So a person seised of lands under a title by disseisin, may be considered as the owner; especially if the disseisee’s right of entry has been tolled ; for if the disseisee has not a right to enter, but only a right of action, he is not the absolute owner of the land. The disseisor is the owner, though his title may be defeasible. The present case seems to me to be much stronger ; for the plaintiff had an indefeasible title to the land, which no one could defeat or disturb during his life ; and he might remove and sell the house at any time. Holding the property by such a title, he might well represent himself as the lawful owner. And moreover, if the representation were defective or inaccurate, it does not appear to be so substantially. If the plaintiff’s title had been more fully disclosed, it might have some effect in the estimation of the value, but it does not. appear that the estimate exceeded the real value. The value was of no importance to the defendants, excepting so far as an over-estimate might operate on the assured, so as to render him less careful of the property. It could have no such operation in this case, for it must be presumed that the plaintiff was as much interested to preserve the property insured for his wife, as for his children, if she should survive him. A mortgagor may represent the estate mortgaged as his property, although the legal estate is in the mortgagee. Such a representation is not strictly true, but it is not so substantially false as to make void the policy. Strong v. Manufacturers' Ins. Co., ante, p. 40.

The objection as to the tenancy in common is also immaterial ; for an undivided moiety of the whole lot is equivalent to a moiety in severalty ; and besides, the plaintiff had a right to the house by the written agreement of Raymond. This agreement was made on a good consideration, and was binding.

There is, therefore, no ground on which the objection as to the supposed misrepresentation can be supported.

As to the other objections,—that respecting the alleged concealment, and that of the supposed increáse of risk by the addition to the house, — these seem to depend on facts which have been settled by the jury ; and we are of opinion that the evidence well supports the verdict. , The instructions of the judge to the jury were perfectly correct on both points.

Upon the whole, therefore, we think there is no cause for disturbing the verdict, excepting as to the amount of the former loss, which should have been deducted. The sums insured on the dwellinghouse, and on the shop, tools, lumber-house and lumber, are not to be taken together for the purpose of enlarging the limits of the plaintiff’s liability. The risks are distinct; and by the terms of the policy it is provided, “ that the insurers shall not be liable for more than the sum insured, in any case whatever.” The verdict is to be reduced accordingly by the deduction of $ 142 and interest thereon.

Judgment for the plaintiff. 
      
       See Merriam v. Middlesex Fire Ins. Co 21 Pick. 162; Stebbins v. The Globe Ins. Co., 2 Hall, (N. York,) 632 ; 3 Kent’s Comm. (3d ed.) 372, 373; Columbian Ins. Co. v. Lawrence, 2 Peters, 25.
     