
    TERMINAL ICE & POWER CO., Appellant, v. COMMERCIAL FIRE INS. CO., Respondent.
    Kansas City Court of Appeals,
    April 30, 1917.
    FIRE INSURANCE: Notice of Foreclosure of Deed of Trust. The' provision of a fire insurance policy that the policy shall become void “if with the knowledge of the insured foreclosure proceedings be commenced, or notice given of the sale of any property covered by this policy by virtue of any mortgage, or deed of trust,” does not apply where notice of foreclosure was published before the issuance of the policy.
    Appeal from Jackson Circuit Court. — Hon. Allen G. Southern, Judge.
    
      Reversed and remanded.
    
      Lathrop, Morrow, Fox & Moore, and Boyle & Howell for appellant.
    
      Fyke & Snider for respondent.
   BLAND, J.

This is a companion case to Terminal lee and Power Company v. American Fire Insurance Company, decided at this term. However, the policy of insurance involved in this case was issued on June 13,1913, about six days after the notice of foreclosure had been published. The provision of the policy “if with the knowledge of the insured foreclosure proceedings be commenced, or notice given of the sale of any property covered by this policy by virtue of any mortgage, or trust deed” the policy shall become void is not applicable to this case, for the reason that that clause could not apply to any conditions which existed at the time of the" issuance of the policy and the policy became void only for breaches occurring after the policy was issued. [Orient Insurance Company v. Burrus, 63 S. W. 453 (Ky.); Cooledge v. Insurance Co., 30 Atl. 798 (Vt.).]

The judgment in this case is, therefore, reversed and the cause remanded.

All concur.

ON REHEARING.

BLAND, J.

The parties to this suit have joined in a request to the court to modify the opinion herein for the reason that the suit was brought on two policies of insurance; one of said policies being dated June 13, 1913, for the sum of one thousand ($1000) dollars, and the other being dated May 19, 1913, for the sum of fifteen hundred ($1500) dollars. The latter policy was issued before foreclosure proceedings were commenced and therefore is subject to the rule laid down by this court in the case of Terminal Ice & Power Company v. American Fire Insurance Company, 194 S. W. 722.

In writing the original opinion in this ease the court, by the briefs filed in this case, was erroneously led into the idea that this suit was upon one fire insurance policy issued June 13, 1913.

In accordance with the request of the parties hereto it is ordered that the judgment of the lower court covering the first count of plaintiff’s petition be reversed and remanded. The judgment of the lower court in reference to the second count of plaintiff’s petition is affirmed.  