Policies of insurance also usually contain conditions for forfeiture in case of incum brance without notice, or in case the prop erty be "levied upon or taken into possession or custody," and such conditions are valid ; Dover Glass-Works Co. v. Ins. Co., 1 Marv. (Del.) 32, 29 Atl. 1039, 65 Am. St. Rep. 264.
Where the property insured is subject to deeds of trust and there is a condition in the policy against a chattel mortgage, it was held that they were one and the same thing: Hunt v. Ins. Co., 196 U. S. 47, 25 Sup. Ct. 179, 49 L. Ed. 381. A breach renders the policy void; id.; Gray v. Assur. Co., 82 Hun 380, 31 N. Y. Supp. 237; and the question whether the execution of a mortgage in creased the risk is immaterial; Milwaukee Mechanics' Ins. Co. v. Niewedde, 12 Ind. App. 145, 39 N. E. 757; breach of any prom issory warranty avoids the policy irrespec tive of its materiality ; McKenzie v. Ins. Co., 112 Cal. 548, 44 Pac. '922 ; nor does it matter that the loss was not produced or contribut ed to the breach; Cogswell v. Chubb, 1 App. Div. 93, 36 N. Y. Supp. 1076. A judg ment recovered in invitum is not within such condition ; Gerling v. Ins. Co., 39 W. Va. 689, 20 S. E. 691; but a confession of judg ment is; Hench v. Ins. Co., 122 Pa. 128, 15 Atl. 671, 9 Am. St. Rep. 74; and an agree ment by one heir to pay the other heirs, in instalments, for property taken under a will ; Henninger v. Ins. Co., 168 Pa. 350, 31 Atl. 1083. A technical seizure where the possession is unchanged is not an avoidance; Caraher v. Ins. Co., 63 Hun 82, 17 N. Y. Supp. 858; Smith v. Ins. Co., 89 Pa. 287; 5 Ont. App. 605. A provision for forfeiture for the levy of an execution relates to per sonalty and not to land; Colt v. Fire Ins. Co., 54 N. Y. 595 ; Hammel v. Ins. Co., 54 Wis. 72, 11 N. W. 349, 41 Am. Rep. 1.
Under these conditions, a breach as to part of the insured property, which is not de stroyed or injured, may not avoid the policy as to another part unaffected by the breach. Thus it was held that a recovery, under a live-stock policy, for a cow killed would not be prevented by the existence of incum brances, in violation of a covenant in the policy, where the property actually lost was not encumbered; German Ins. Co. v. Fair bank, 32 Neb. 750, 49 N. W. 711, 29 Am. St. Rep. 459. Such contract is severable and any breach of the condition would avoid only as to such property as was covered by the incumbrance; Schuster v. Ins. Co., 102 N. Y. 260, 6 N. E. 406; Perry v. Ins. Co., 11 Fed. 478; 46 U. C. Q. B. 334; 10 Ont. 236 ; Hart
ford Fire Ins. Co. v. Walsh, 54 Ill. 164, 5 Am. Rep. 115. The same principle applies to the defence that the property insured was sold and conveyed ; if the contract is sever able, a breach as to one part does not oper ate as a defence with respect to property not included; Phenix Ins. Co. v. Grimes, 33 Neb. 340, 50 N. W. 168.
In insurance on manufacturing establish ments it is usual to stipulate for avoidance if operations should cease without the con sent of the insurer, and• such provision is valid and is violated though a watchman was employed and the risk not increased ; Dover Glass Works Co. v. Ins. Co., 1 Marv.
(Del.) 32, 29 AU. 1039, 65 Am. St. Rep. 264 ; and the same is true of all conditions which are warranties. As to the distinction be tween representation and warranty and the law as to both, see those titles ; and as to increase of risk, see Risks AND PERILS.
Insurance on buildings or their contents is usually upon condition that if the former is suffered to be vacant or unoccupied, the policy will be void. In such case the for feiture does not depend upon the insured's knowledge of the fact of vacancy ; Schuer mann v. Ins. Co., 161 Ill. 437, 43 N. E. 1093, 52 Am. St. Rep. 377 ; and a purchaser of the house and assignee of the policy is bound by the condition ; Ranspach v. Ins. Co., 109 Mich. 699, 67 N. W. 967. Temporary absence of a tenant will not work a forfeiture ; Huber v. Assur. Co., 92 Hun 223, 36 N. Y. Supp. 873 ; Burlington Ins. Co. v. Lowery, 61 Ark. 108, 32 S. W. 383, 54 Am. St. Rep. 196 ; nor will merely sleeping in the house occasionally and daily visits of the owner's wife to get pro visions prevent forfeiture ; Agricultural Ins. Co. v. Hamilton, 82 Md. 88, 33 AU. 429, 30 L. R. A. 633, 51 Am. St. Rep. 457 ; or visits twice a day by an employ6; Stapleton v. Ins. Co., 16 Misc. 483, 38 N. Y. Supp. 973. The insurer cannot establish a forfeiture without proving that the premises were un occupied for any purpose ; Pabst Brewing Co. v. Ins. Co„ 2 Mo. App. 934. Build ings are vacant where the occupant has mov ed his family because of sickness with the intention of returning, and although he him self returns nearly every day ; Knowlton v. Ins. Co., 100 Me. 481, 62 AU. 289, 2 L. R. A. (N. S.) 517 ; so of the removal of a tenant, although, the insured owner has no notice of such removal; Ohio Farmers' Ins. Co. v. Vogel, 166 Ind. 239, 76 N. E. 977, 3 L. R. A. (N. S.) 966, 117 Am. St. Rep. 382, 9 Ann. Cas. 91.