It is not a false representation for a preg nant woman to state she is in sound bodily health, and she is not required to inform the company of • her pregnancy ; Merriman v. Grand Lodge, 77 Neb. 544, 110 N. W. 302, 8 L. R. A, (N. S.) 983, 124 Am. St. Rep. 867, 15 Ann. Cas. 124.
See REPRESENTATION; WARRANTY.
Whether facts concealed or misstated in an application are material is a question for the jury ; State Ins. Co. of Des Moines• v. Du Bois, 7 Colo. App. 214, 44 Pac. 756.
The happening' of the event insured against and the consequent damage to the subject-matter, is termed the i0.48 (q. v.).
Where the insurance is on property, an alienation will terminate' the contract unless the insurance be transferred with the con sent of the underwriter. ASSIGNMENT. An alienation of part of the property or dim inution of the interest of the insured will not, in the absence of an express condition, avoid the policy ; Pennsylvania Fire Ins. Co. v. Dougherty, 102 Pa. 568; 2Etna• Fire Ins. Co. v. Tyler, 16 Wend. (N. Y.) 385, 30 Am. Dec. 90; Sides v. Ins. Co., 16 Fed. 650; Gor don v. Ins. Co., 2 Pick. (Mass.) 249; Tiefen thal v. Ins. Co., 53 Mich. 306, 19 N. W. 9; 14 U. C. Q. B. 342 ; 25 Beay. 444; and the sale of a part does not avoid a policy for bidding merely "sale or transfer ;" Quarrier v. Ins. Co., 10 W. Va. 507, 27 Am. Rep. Blackwell v. Ins. Co., 48 Ohio St. 533, 29 N. E. 278, 14 L. R. A. 431, 29 Am. St. Rep. 574: There is usually a clause, varying in exact terms, forbidding any change in title •or pos session, and, in such case, the sale of an undivided half interest is within its mean ing and avoids the policy ; McEwan v. Ins. Co., 1 Mich. N. P. 118; but a distinction has been taken between a sale of an interest in property and a sale of the property, and the assignment by a new partner to his firm of his insured property as firm assets was not a forfeiture ; Scanlon v. Union Fire Ins. Co., 4 Biss. 511, Fed. Cas. No. 12,436; Savage v. Ins. Co., 52 N. Y. 502, 11 Am. Rep. 741. Clauses against alienation are conditions precedent ; Lett v. Ins. Co., 125 N. Y. 82, 25 N. E. 1088; Home Ins. Co. of New York v. Bethel, 42 III. App. 475; and the question usually is whether there is a sale outright or by reason of something in the nature of a defeasance, either in law or by contract, the insured has not wholly parted with the property. As to such cases it is difficult, if
not impossible, to lay down any general rule, and each case must be governed by the ap plication of the general principles of the law of contracts and conditions to the par ticular form of the policy and -the facts of the case. If there is, in fact, a total aliena tion, the opinion or motives of the parties in respect to it are not material ; Langdon v. Fire Ins. Ass'n, 22 Minn. 193. A convey ance upon a condition to- be performed be fore title vests will not avoid; Tittemore v. Ins. Co., 20 Vt. 546 ; so where the owner of an equity of redemption sells with a stipula tion for payment of the mortgage by the purchaser and is compelled to take back the title for non-performance; Worthington v. Hearse, 12 Allen (Mass.) 382, 90 Am. Dec. 152; or where, for other reasons, the sale is not carried out and there is a reconveyance before loss ; Power v. Ins. Co., 19 La. 28, 36 Am. Dec. 665 ; but see Davidson v. Ins. Co., 71 Ia. 532, 32 N. W. 514, 60 Am. Rep. 818.
An executory contract to convey the in sured property with a consideration fully paid, but no transfer of title or possession, is not a change in interest, title or posses sion within the meaning of a forfeiture clause; Garner v. Ins. Co., 73 Kan. 127, 84 Pac. 717, 4 L. R. A. (N. S.) 654, 117 Am. St. Rep. 460, 9 Ann. Cas. 459; nor is the filing of a voluntary petition in bankruptcy where the fire occurs before the appointment of the receiver or trustee ; Gordon v. Ins. Co., 120 La. 441, 45 South. 384, 15 L. R. A. (N. S.) 827, 124 Am. St. Rep. 434,14 Ann. Cas. 886. Such conditions will apply to a mortgagee although there is a slip attached to the poli cy making the loss payable to him ; Brecht v. Ins. Co., 160 Fed. 399, 87 C. C. A. 351, 18 L. R. A. (N. S.) 197; where property is in sured in a trade name, a change in the per sonnel of the partners avoids the policy ; American Steam Laundry Co. v. Ins. Co., 121 Tenn. 13, 113 S. W. 394, 21 L. R. A. (N. S.) 442; although the trade name is continued by the new owners ; id. Void means voida ble and the insurer must with reasonable promptness notify the assured of its inten tion to avoid the policy and tender the un earned premium which it has received ; Glens Falls Ins. Co. v. Michael, 167 Ind. 659, 74 N. E. 964, 79 N. E. 905, 8 L. R. A. (N. S.) 708.