may, in view of the authorities on the point, be also regarded as the sole and unconditional owner. But it is not apparent how, in any sense of the words, she can be regarded as the sole and unconditional owner of the residue of the property; . . and it would be difficult to conceive an ownership more distinctly of the character against which the defendant company sought to guard its liability. If, therefore, we are to give any force whatever to the condition in the policy of insurance that the person insured must be the sole and unconditional owner, we cannot hold that the condition was observed in regard to a considerable part of the property sought to be protected by this instrument. It may well be that the plaintiff had an insurable interest in all of it, possibly even in the piano, which she had only rented, and that the defendant company might have insured that interest, if only that had been presented to them for insurance. But certainly it was not the interest that was actually presented for insurance; it was not sole and unconditional ownership, and it does not follow that, even if the defendant would have insured, it would have done so on the same terms and conditions. the contrary, in such cases, the terms and conditions are usually different from the case of either absolute or unconditional ownership." On This case states with clearness the reasons which have moved the courts to the majority rule. To the same effect are McWilliams v. Cascade F. & M. Ins. Co. 7 Wash. 48, 34 Pac. 140; Phoenix Ins. Co. v. Public Parks Amusement Co. 63 Ark. 187, 37 S. W. 959; Brown v. Commercial F. Ins. Co. 86 Ala. 189, 5 So. 500; Lasher v. St. Joseph F. & M. Ins. Co. 86 N. Y. 423; Barnard v. National F. Ins. Co. 27 Mo. App. 26; Farmville Ins. & Bkg. Co. v. Butler, 55 Md. 233; Geiss v. Franklin Ins. Co. 123 Ind. 172, 18 Am. St. Rep. 324, 24 N. E. 99; Westchester F. Ins. Co. v. Weaver, 70 Md. 538, 5 L.R.A. 478, 17 Atl. 401, 18 Atl. 1034; Garver v. Hawkeye Ins. Co. 69 Iowa, 202, 28 N. W. 555; Havens v. Home Ins. Co. 111 Ind. 90, 60 Am. Rep. 689, 12 N. E. 137; Phenix Ins. Co. v. Pickel, 119 Ind. 155, 12 Am. St. Rep. 393, 21 N. E. 546; Pickel v. Phenix Ins. Co. 119 Ind. 291, 21 N. E. 898; Dow v. National Assur. Co. 26 R. I. 379, 67 L.R.A. 479, 106 Am. St. Rep. 728, 58 Atl. 999. In the last case the court said: "The question raised in this case is the validity of the policy, which covered household furniture of every description in the house occupied by the plaintiff. The policy contains a clause that the policy shall be void if the interest of the insured be other than unconditional and sole ownership, unless other ownership be assented to in writing. It is admitted that a considerable portion of the furniture was owned by others than the plaintiff, she holding it under what is called the instalment plan. "The plaintiff claims the right to recover on what she owned herself, and had a verdict, under an instruction to that effect, to which the defendant takes exception. "The condition of the policy is plain, and the breach of it is admitted. Ownership is an important element in a contract of insurance. As said by Marshall, Ch. J., in Columbian Ins. Co. v. Lawrence, 2 Pet. 25, 7 L. ed. 335: 'Underwriters do not rely so much on the principles as on the interest of the assured; and it would seem, therefore, to be always material that they should know how far this interest is engaged in guarding the property from loss.' "Accordingly, when insurance is contracted upon property as a whole, it is no answer to say that the insured owned a part of it. A new element would be introduced into the contract. We cannot say that the contract would have been made as it was, or even at all, if the fact had been known that only a small part of the property belonged to the plaintiff. Such a fact is deemed to be so important that it is no longer merely a provision of contract, but (— Va. —, 125 S. E. 801.) of statute, for the statute prescribes the clause in question. The terms of it apply to the policy as a whole. The policy is made void; not void simply as to the part of the property in which there may not be absolute ownership, and valid as to the rest. We see no room for such a construction of the terms of the policy." An examination of the foregoing cases will establish the correctness of the conclusions of the textwriters quoted, and they are also authority for the principle, quoted in the last-mentioned case (Dow v. National Assur. Co.), that title to all of the personal property insured must be unconditional, and that and that insured, when his -effect of condi- title to part therepart of insured of is conditional, cannot recover for the loss of such part as he owns unconditionally. property. But it is contended that in Virginia conditional sales contracts are not violative of the sole and unconditional ownership clause in an insurance policy, and in support of this contention are cited: Exposition Arcade Corp. v. Lit Bros. 113 Va. 574, 75 S. E. 117, Ann. Cas. 1913D, 335 (in which Keith, P., speaking for the court, used this language: "The agreement that the title should remain in the payee until the notes were paid is a short form of chattel mortgage), and Manhattan F. Ins. Co. v. Weill, 28 Gratt. 389, 26 Am. Rep. 364; Morotock Ins. Co. v. Rodefer Bros. 92 Va. 747, 53 Am. St. Rep. 846, 24 S. E. 393; and Union Assur. Soc. v. Nalls, 101 Va. 613, 99 Am. St. Rep. 923, 44 S. E. 896, which hold that the unconditional and sole ownership clause is not broken by the existence of a mortgage on the property at the date of the policy. As above stated, it is the contention of counsel for plaintiffs that the result of these decisions is to remove any legal distinction between a conditional sales contract and a chattel mortgage in a case such as we have under review, and to hold that the existence of a conditional sales con38 A.L.R.-13. tract does not violate the unconditional and sole ownership clause in a policy of insurance. We cannot concur in this view. Of course it is universally held that a chattel mortgage on personal property does not violate the unconditional and sole ownership clause in an insurance policy, and in some jurisdictions, as stated, a conditional sales contract does not. We do not, however, construe Exposition Arcade Corp. v. Lit Bros. supra, to abolish the distinction between conditional sales contracts and sale as chattel chattel mortgages, -conditional mortgage. in a contention between insurer and insured in a case such as we are now considering, and, even if we did, it would avail the plaintiffs nothing, because in that event the conditional sales contract, being construed as a chattel mortgage, would violate the condition of the insurance policy against encumbering the insured personal property by chattel mortgage. In the case just above referred to (Exposition Arcade Corp. v. Lit Bros.) the controversy was between buyer and seller for the unpaid purchase price of goods delivered to the buyer, which were subsequently destroyed by fire, and the court held they were held by the latter at his own risk, and that in legal effect the conditional sales contract was the same as if the buyer had obtained title from the seller, and had given back a mortgage to secure the purchase price. This case follows Chicago R. Equipment Co. v. Merchants' Nat. Bank, 136 U. S. 268, 34 L. ed. 349, 10 Sup. Ct. Rep. 999, in which the same expression is found. But this was also a controversy between seller and purchaser, and involved a series of notes which, in addition to setting out that title was retained by the seller, also declared that they were secured on the freight cars sold to the railway company. Whether the interest or ownership of the vendee in the property was unconditional and sole ownership was not before the court in either case. In the Chicago R. Equipment Co. Case, Justice Harlan, at page 280 of the opinion, says: "The fact that, by agreement, the title is to remain in the vendor of personal property until the notes for the [purchase] price are paid, does not necessarily [italics ours] import that the transaction was a conditional sale." And again, at page 282: "It is a. mistake to suppose that there is any conflict between these views and those expressed in the subsequent case of Harkness v. Russell & Co. 118 U. S. 663, 680, 30 L. ed. 285, 291, 7 Sup. Ct. Rep. 51, where the whole doctrine of conditional sales of personal property was carefully examined, and in which the particular instrument there in question was held to import, not an absolute sale, but only an agreement to sell upon condition that the purchasers should pay their notes at maturity. With the principles laid down in the latter case we are entirely satisfied." In Harkness v. Russell & Co. 118 U. S. 663, 30 L. ed. 285, 7 Sup. Ct. Rep. 51, referred to by Justice Harlan, quoting from the syllabus, the court held: "A, having agreed to sell certain personal property to B on the performance of conditions on his part, delivered it to him, and took from him a promissory note stating the following as the condition of the sale: "The express condition of this transaction is such that the title, ownership, or possession of said property does not pass from the said A until this note and interest shall have been paid in full, and the said A has full power to declare this note due and take possession of said engine and sawmill when he may deem himself insecure, even before the maturity of this note. In case said property shall be taken back, A may sell the same at public or private sale without notice, or he may, without sale, indorse the true value of the property on this note, and I agree to pay on the note any balance due thereon after such indorsement, as damages and rental for said machinery.' B entered into possession, and, without performing the conditions of sale, sold the property to C, who knew that it had not been paid for, and that A claimed title to it. At the time of the sale to C, the value of the property was less than the amount due on the note. In an action against C to recover the value of the property, held, that this transaction was not mortgage, but was an executory conditional sale; and, being free from fraud, that it was valid." a It is obvious from the foregoing that the United States Supreme Court was particular to draw a distinction between cases which, at first blush, may seem to be in conflict, and not to become committed to the hard and fast rule that in every case where a vendor undertakes to retain title to goods sold, his contract with the vendee amounts to nothing more than a chattel mortgage; and so, in Virginia, our court, in using similar language in construing a contract in a similar case, did not intend to lay down a hard and fast rule. In Virginia it should be noted that conditional sales contracts and sales contracts retaining title to personal property in the vendor have been specifically recognized by statute as distinguished from liens reserved thereon. Section 5189, Code 1919, as amended by Acts 1923, chap. 159, and §§ 5190 and 5191. The sales contract in the instant case not only provides that title and right of property in the furniture in question shall remain in the vendor, but that, in the event that the vendee fails to pay the purchase price, or any instalment thereof, as provided, the vendor shall have immediate right to take possession of same, and the vendor also retains the right to repossess if the furniture is removed from the residence then occupied by vendee. The possession of vendor is thus qualified, and the ownership is conditioned upon full payment of the purchase price. There is only one characteristic of ownership here, viz., the right to use the furniture, and that was restricted to the premises then (-Va., 125 8. E. 801.) occupied by vendee. This contract is to all intents and purposes identical with the contract referred to in Harkness v. Russell & Co. supra, in which the United States Supreme Court held that the transaction was not a mortgage, but was an executory conditional sale. As above shown, this holding was specifically approved in Chicago R. Equipment Co. v. Merchants' Nat. Bank, supra, and this was the case Keith, P., followed in Exposition Arcade Corp. v. Lit Bros. 113 Va. 574, 75 S. E. 117, Ann. Cas. 1913D, 335. See also Bailey v. Baker Ice Mach. Co. 239 U. S. 268, 60 L. ed. 275, 36 Sup. Ct. Rep. 50, and Bryant v. Swofford Bros. Dry Goods Co. 214 U. S. 279, 53 L. ed. 997, 29 Sup. Ct. Rep. 614. So, while it may very well be, as between the vendor and vendee, a conditional sale contract, when the property is destroyed, will not relieve the vendee from the payment of the purchase money, yet, as between the purchaser of property and an insurer who contracts with the purchaser upon the express stipulation that the interest of the purchaser shall be unconditional and sole ownership, the existence of a conditional sales contract, without the knowledge of the insurer, would render the policy void. To hold otherwise under the conditions of the contract above set out would be to totally disregard the plain meaning of ordinary English. One whose ownership and interest in property are dependent upon his performance of an act which has not been performed cannot be said to be in unconditional ownership. If this is not conditional ownership, then there is no such thing as conditional ownership. The unconditional and sole ownership clause in an insurance policy is aimed at just such ownership. It is all well enough to talk about such a clause referring to the interest of the insured, and not to the legal title, but the interest of the insured is nothing, where he has paid little or nothing and is insolvent, as the plaintiffs are shown to be by the record in this case. As was said by Keith, P., in Westchester F. Ins. Co. v. Ocean View Pleasure Pier Co. 106 Va. 633, 56 S. E. 584, quoting May on Ins. 4th ed. § 288: "Violation of a condition in the policy that if the building is on leased ground it must be so expressed will be fatal, although no question was asked in the application in respect to the matter. And land held under a lease to A and his heirs and assigns forever, reserving a perpetual rent to the grantor, is a leasehold," and Ostrander on Fire Ins. 2d ed. § 66, p. 224: "When the true ownership is not required to be stated by the conditions of the policy, generally. it will be sufficient if the insured has an insurable interest; but when such requirement is the condition of the policy it becomes a material part of the contract, and all rights under it are forfeited by noncompliance. A failure in such case to disclose truly the interest in the property cannot be regarded an immaterial circumstance. By express stipulations the parties made it material, and the validity of the contract depended upon the compliance with the condition." And then the learned judge continues, at page 639: "The condition of the policy was that it should be void if the interest of the insured was other than unconditional and sole ownership, or if the building insured should be upon ground not owned by the insured in fee simple. It appears that no inquiry was made by the insurer; that it had no knowledge of the true condition of the title; and the case depended upon a construction of the effect of the condition in the policy just recited. The court held that it was incumbent upon the applicant to disclose the nature of his title; that the insured, by accepting the policy in question, was charged with notice of its contents and bound by its conditions; that the company, by issuing the policy without inquiry, did not waive the conditions as to title and ownership." And Buchanan, J., in Virginia F. & M. Ins. Co. v. J. I. Case Threshing Mach. Co. 107 Va. 590, 122 Am. St. Rep. 875, 59 S. E. 369, repeats the foregoing language with approval. Thus, it will be seen that in Virginia the unconditional and sole ownership clause and the chattel mortgage clause have been recognized and upheld, and further, that an insurance company, by issuing its policy without making specific inquiry as to the title or ownership of the insured in the property, does not waive these conditions. See also Rochester German Ins. Co. v. Monumental Sav. Asso. 107 Va. 701, 60 S. E. 93. We, therefore, hold that in the absence of knowledge on the part of the insurer a conditional sales contract, such as appears in the case under consideration here, affecting the personal property insured, would render the policy void when it contains the standard "unconditional and sole ownership" clause. But, even if it were true that, according to the Virginia authorities, a conditional sales contract is in legal effect nothing more than a short form of chattel mortgage between insurer and insured, it is immaterial, so far as the ultimate outcome of this case is concerned. -effect of chattel mortgage on property. If the conditional sales contract did not violate the unconditional and sole ownership clause, then, being a chattel mortgage, it undoubtedly violates that clause providing that, if the property is encumbered by chattel mortgage, the policy shall be void, unless the trial court was right in that part of the instruction which told the jury, in effect, that the conditional sales contract was a short form of chattel mortgage, and was not such an estate in, or title to, the property, within the meaning of the policy sued on, as to render it void if the property was or became encumbered by chattel mortgage. This brings us to consideration of contention 3 by plaintiffs: Among others, there are two distinct clauses in the policy sued on in the instant case, intended to cover conditions different in character; the sole and unconditional ownership clause, and the chattel mortgage clause. Both clauses are in the contract between the parties; they are not identical in language, and they were not intended to be identical in meaning or in scope. No decision of the appellate court of this state has ever declared them identical, and, so far as we are aware, no decision of any other appellate court has so declared them. It is true that the supreme court of Virginia has declared that a chattel mortgage does not violate the sole and unconditional ownership clause, but it is not true that it has declared that a chattel mortgage does not violate the chattel mortgage clause. On the contrary, it has held the reverse, and avoided the policy under that clause, because of a chattel mortgage. Virginia F. & M. Ins. Co. v. J. I. Case Threshing Mach. Co. 107 Va. 588, 122 Am. St. Rep. 875, 59 S. E. 369. In a very comprehensive discussion appearing in volume 15, Va. L. Reg. p. 842, Judge Crump reviews the Virginia cases in which chattel mortgage clauses similar to the one under consideration in the instant case were considered. The cases there discussed are the cases relied on by the plaintiffs to establish the contention upon which the instruction just referred to is based. He closes the discussion with this conclusion: "Considering these three latest cases as bearing upon the question with which this article is headed, the conclusion is inevitable that the Nalls Case [101 Va. 613, 99 Am. St. Rep. 923, 44 S. S. 896] is to be regarded as overruled, and that the law in this state as to the effect of a chattel mortgage existing upon personal property when it is insured is to be regarded as settled in accordance with the decisions in the Sulphur Mines Co. Case in 49 Va. 355, 26 S. E. 856, and in Virginia F. & M. Ins. Co. v. J. I. Case Threshing Mach. Co. supra. We conclude, therefore, that the rule in Virginia is now to be regarded as fixed-that the |