(-Va., 125 S. E. 801.) breach of the stipulation against a chattel mortgage, upon compliance with which the validity of the policy, by its terms, is made to depend, will avoid the policy and defeat a claim upon it, unless knowledge of the chattel mortgage is brought home to the company, or it is otherwise estopped from relying upon it. "This principle is in accordance with the decision of the Supreme Court of the United States upon this question, and also with the weight of authority. Hunt v. Springfield F. & M. Ins. Co. 196 U. S. 47, 49 L. ed. 381, 25 Sup. Ct. Rep. 179; Vance, Ins. pp. 447, 448; Ostrander, Fire Ins. p. 253; 2 Cooley, Briefs on Ins. pp. 1396--1398; and 13 Va. L. Reg. 718." In these conclusions we concur, so that the plaintiff's case must fall in either view of the situation, unless they have shown a state of facts or submitted evidence which estabestablished knowledge on the part of the defendant company's agent, Morgan, of the condition of the plaintiffs' title, such as would be imputed to the company. This brings us to the fourth proposition, and in considering this proposition it is necessary to inquire whether there is sufficient evidence in the record to submit the question to the jury under proper instruction, or whether, as a matter of law, the agent had no such knowledge. We will examine first into the legal requirements, and then measure the evidence by these requirements. The case of Foreman v. German Alliance Ins. Asso. 104 Va. 694, 3 L.R.A. (N.S.) 444, 113 Am. St. Rep. 1071, 52 S. E. 337, is practically on all fours with the instant case, so far as the question we are discussing is concerned. In that case Albert Morris & Company were agents for the insurance company as well as for the Building & Loan Association, which held a mortgage upon the property of the insured. On the 5th of June, the premium on the policy not having been paid, Albert Morris & Company, as agents for the Building & Loan Association, paid the premium. On July 5 the insured vacated the premises and gave the key to Albert Morris & Company, as agents for the Building & Loan Association. The buildings were destroyed by fire in November, and the insurance company denied its liability on the ground that the vacancy clause in the policy had been violated. In disposing of the question of the knowledge of the agent as to the vacancy of the premises being imputed to the insurance company, the court said: "It is well settled that any acts, declarations, or course of dealing by an insurance company, with knowledge of facts constituting a breach of a condition in the policy, leading the party insured honestly to think that by conforming thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part, will estop the insurance company from insisting upon the forfeiture, though it might be claimed under the express letter of the policy. Georgia Home Ins. Co. v. Kinnier, 28 Gratt. 88; Morotock Ins. Co. v. Pankey, 91 Va. 259, 260, 21 S. E. 487; Virginia F. & M. Ins. Co. v. Richmond Mica Co. 102 Va. 429, 433, 102 Am. St. Rep. 846, 46 S. E. 463, and cases there cited; New York L. Ins. Co. v. Eggleston, 96 U. S. 572, 24 L. ed. 841. "Applying that principle to the facts of this case, it is manifest, we think, that the plaintiff in error has failed to show that the insurance company has waived or estopped itself from relying upon the forfeiture set up as a defense. The premium was paid on June 5, and the building did not become vacant until July 5, and there is no evidence that the insurance company knew that it became vacant before the fire occurred. "It is argued that its agents, Albert Morris & Company, knew that it was vacant, and that their knowledge was notice to the insurance company. It is true that Albert Morris & Company did know it, but that knowledge was acquired by them as agents of the Building & Loan Association, and not while attending to the affairs of the insurance company. Knowledge acquired in that manner, in order to be binding upon the insurance company, would have to be present in the agent's mind at the time he did the act which it is claimed constituted the waiver, and the burden is on the party. relying upon the waiver to prove this." In the instant case Morgan was agent for the defendant insurance company, and he was also a general real estate agent. In the latter capacity he negotiated a loan of $350 to the plaintiffs, or he personally indorsed a note to enable plaintiffs to secure $350, but the loan was made in May and the insurance policy was issued on the 12th day of the following July. Let us examine the evidence as to the information vouchsafed Morgan as to the conditional ownership of, or the mortgage upon, the property by the plaintiffs at the time the loan was made, and later, when the policy was written, and see if there was anything said or done which could fairly be said to give him knowledge which would be imputed to the defendant and estop it from defending upon the ground that either or both of the clauses in the policy had been violated. First, we will take the bare circumstances that Morgan was agent for the insurance company and that he was also a general real estate agent. But the making of the loan and issuing of the policy were so far apart that, even independently of the principle enunciated in Foreman v. German Alliance Ins. Asso. supra, he could not have been assumed to have carried the knowledge in his mind for that length of time. But did he have any knowledge, even if he had kept everything that was said continuously in mind, that the $350 was to buy furniture under a conditional sales contract or to make a cash payment and place a mortgage, or that there was to be such a contract or a mortgage, without considering Morgan's testimony? Here is what the plaintiffs offer, Mrs. Lennon testifying: Q. Did you tell him on May 24 that you wanted to borrow some money to pay on the furniture? A. Yes; I told him we wanted $3,000, and he lent me $350. W. J. Lennon testified: Q. What took place between you and the agent with reference to buying furniture on the instalment plan? In that connection I want you to confine yourself to the furniture. A. I and my wife went to Morgan; she wanted to get fire insurance down there. So he said "All right; how much have you got in there?" "Oh, around $5,000 or $6,000." He said, "Well, I will insure it for $4,000." So he insured the furniture. I and Mrs. Lennon went to Mr. Morgan before that, and got a note for $350 off him, for to pay on the furniture to stock the place up with. Q. Did he know what you got it for? A. Yes, sir. Q. How did he know it? A. Because we could not start without it. (Note. Answer objected to.) By Mr. Spratley: Q. How did he know that you wanted it to pay on the furniture? A. We told him that we could not start the place up without getting a loan. Q. How long before the policy was taken out did you tell him that? A. We told him that when we were starting up the place. The conversation referred to as to the loan took place on May 24, and the policy was issued on July 12. Morgan's testimony was as fol lows: Q. State the circumstances under which it (the fire insurance policy) was issued. A. Mr. and Mrs. Lennon leased the place from me, and when she (-Va., 125 B. E. 801.) did, she told me that when they Q. Anything else? A. She said she could not pay the premium all at that time; that she would pay part of it; and on July 22, I think it was, she came in and paid $10 on the premium. Mrs. Lennon further testified: A. I went into Mr. Morgan's place of business on King street and I told him, "Mr. Morgan, I have got a lot of furniture there, part of it belongs to me, and part does not belong to me; I want to insure my furniture." He said, "How much have you?" I said, "I have $5,000 or $6,000 worth, but I would like for you to come out and take an inventory to be sure; I will leave it entirely to you, the amount of insurance." He said, He said, "Very well; do you want to insure it?" I said, "Yes, but I won't be able to pay the entire premium today. I will pay $10 on the premium to-day." He said, "That will be all right; I will issue the policy, mail a copy of this to Richmond to the company, and hold a copy myself, and they will return the copy to you, or return the copy to me, and I will deliver it to you." In view of the obvious absolute insufficiency of the foregoing evidence, conceding it all to be true, and after drawing every proper legal inference therefrom to impress the agent of the insurance company with knowledge of the condition of the plaintiffs' title to the insured property, when measured by the re quirements as laid down in Foreman The company issued the policy without inquiry as to the title, as it had a right to do, -failure to title-effect. and it did not there- inquire as to Co. v. Ocean View Pleasure Pier Co. 106 Va. 633, 56 S. E. 584, and Virginia F. & M. Ins. Co. v. J. I. Case Threshing Mach. Co. 107 Va. 588, 122 Am. St. Rep. 875, 59 S. E. 369. For the foregoing reasons we are of opinion that the trial court erred in not setting aside the verdict of the jury and in not entering judg ment in favor of the defendant, both of which this court will now do. Reversed. ANNOTATION. Conditional vendor or vendee of personal property as sole and unconditional owner within an insurance policy. Standard policies in use at present usually provide that the policy shall be void if the insured is not the sole and unconditional owner of the property insured; the purpose of such provision is to give protection only to those upon whom loss would inevitably fall but for the insurance, and to avoid taking risks for those whose interest or lack thereof is such that it would tend to encourage carelessness in the use and preservation of the property; clauses of this character apply to conditions existing at the time the policy is issued. 14 R. C. L. title "Insurance," § 229. The present annotation deals with the question of whether a conditional vendor vendee of chattels is a "sole and unconditional" owner within such a provision. It is not concerned with the question as to the character of the interest or title of the parties to an executory contract for the sale of real property; nor does it deal with cases where the vendor of chattels retains merely a lien to secure his unpaid purchase money, where legal title passes with the transfer of possession of the property. owner" within a policy of insurance thereon, making it void in the absence. of such ownership. Alabama.-See Brown v. Commercial F. Ins. Co. (1888) 86 Ala. 189, 5 So. 500. Arkansas.-Phoenix Ins. Co. v. Public Parks Amusement Co. (1896) 63 Ark. 187, 37 S. W. 959, followed in Hartford F. Ins. Co. v. Enoch (1903) 72 Ark. 47, 77 S. W. 899. Connecticut.-Misheloff v. American Cent. Ins. Co. (1925) Conn. 128 Atl. 33. District of Columbia.-Dumas v. Northwestern Nat. Ins. Co. (1898) 12 App. D. C. 245, 40 L.R.A. 358. Georgia. Conyers v. Yorkshire Ins. Co. (1923) 30 Ga. App. 6, 117 S. E. 102. Indiana.-Geiss v. Franklin Ins. Co. (1890) 123 Ind. 173, 18 Am. St. Rep. 324, 24 N. E. 99 (proposition conceded). or II. Vendee as sole and unconditional owner. The general rule is in accord with the decision in the reported case (VIRGINIA F. & M. INS. Co. v. LENNON, ante, 186) that a vendee of chattels under a conditional-sale contract is not the "sole and unconditional Maryland.-Westchester F. Ins. Co. v. Weaver (1889) 70 Md. 536, 5 L.R.A. 478, 17 Atl. 401, 18 Atl. 1034; Ledvinka v. Home Ins. Co. (1921) 139 Md. 434, 19 A.L.R. 167, 115 Atl. 596. Massachusetts.-Ballard v. Globe & R. F. Ins. Co. (1921) 237 Mass. 34, 129 N. E. 290. Ohio. Muskovitz v. Sun Underwriters' Agency (1914) 21 Ohio C. C. N. S. 250, 3 Ohio A. 422. Washington. McWilliams v. Cascade F. & M. Ins. Co. (1893) 7 Wash. 48, 34 Pac. 140. -- Wisconsin. Cooper v. Insurance Co. of Pa. (1897) 96 Wis. 362, 71 N. W. 606 (proposition assumed; question discussed was whether contract was divisible). And this rule applies even though the insured is a foreigner, and did not understand the legal effect of the contract of sale signed by him, which reserved title in the vendor. Muskovitz v. Sun Underwriters' Agency (Ohio) supra. And the reported case (VIRGINIA F. & M. INS. Co. v. LENNON) holds that a conditional-sale contract is not a mere chattel mortgage within the rule that a provision avoiding an insurance policy in the absence of sole and unconditional ownership of the property does not apply in the case of a chattel mortgage; and this, notwithstanding that, as between the buyer and the seller, a conditional-sale contract is regarded as a short form of a chattel mortgage. In Dumas v. Northwestern Nat. Ins. Co. (D. C.) supra, the court, in respect to a claim for insurance on property held under a conditional sale, where the policy provided that it should be void if the interest of the insured were other than unconditional and sole ownership, said: "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. The ownership of that residue was purely and simply conditional; 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 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 the fact that the vendor, who, by the terms of a sale, retained title until the purchase price was paid, had instituted an action against the vendee, to recover possession of the property, in which action the vendee. had given a bond to retain possession, and was in possession at the time it was destroyed, does not convert the interest of the vendee into an unconditional and exclusive ownership, even though the vendor could not recover without returning a part of, or all of, the purchase money paid. Phoenix Ins. Co. v. Public Parks Amusement Co. (1896) 63 Ark. 187, 37 S. W. 959. So, one who has purchased personal property under, but has not complied with the terms of, a conditional-sale contract which provides that the title shall not vest until the terms are complied with, cannot, upon the destruction of the property by fire, recover upon a policy of fire insurance requiring him to be the unconditional owner thereof at the time of the insurance, notwithstanding the fact that the instrument of sale requires the assured to pay the full value of the property in case of its destruction by fire. Westchester F. Ins. Co. V. Weaver (1889) 70 Md. 536, 5 L.R.A. 478, 17 Atl. 401, 18 Atl, 1034. So, one who purchased an automobile, paying two thirds of the purchase price and agreeing to pay the balance within a named time, the title to the automobile meantime to remain in the vendor and the possession in the vendee, is not the sole and unconditional owner of the automobile within a provision of a fire and theft policy on the automobile, requiring such ownership. Misheloff v. American Cent. Ins. Co. (Conn.) supra. And so, although the contract provided that the property should be insured for a sum at least equal to the amount of the unpaid purchase price, for the benefit of the seller, and that the purchaser should pay all loss and damage by reason of fire or other cause not exceeding the amount re |