Home Insurance Co. of New York v. Koob, &c. Insurance Co. v. Spiers, 87 Ky., 285 (10 R., 254) 8 S. W., 453; Insurance Co. v. Clark, 109 Ky., 285 (10 R., 1066) 59 S. W., 863; Insurance Co. v. Gibbons (23 R., 1130) 64 S. W., 909. One of the conditions of the policy sued on was that, "If now or hereafter there be other insurance on any property hereby insured, this policy shall be void, unless otherwise provided by agreement indorsed hereon." Do the two policies constitute what is termed "other insurance?" The manifest purpose of this and similar provisions in the policies of insurance, as well as of the law in favoring them, is to prevent the temptations arising out of overinsurance,-temptation to the insured to either burn his building for the gain or to neglect its care. If the interest of the insured be a life estate in the property, it could not matter to him,-certainly could not profit him-whether the remainder-men were or not insured, if he had not ample insurance to indemnify his individual loss. Insurance Co. v. Drake, 2 B. Mon., 47. Therefore it was held in the Kentucky case just cited that, where the in(surance was independently effected upon distinctive interests, it did not constitute "double insurance," within the meaning of such clauses. Here, though, it is said that the insurance effected by the mortgagee was indirectly for the owner's benefit; for, in event of loss of the building by fire, the mortgagee's insurance would, if sufficient, extinguish the mortgagor's debt. That might or might not be true. But in this case it may be accepted as true. Still we must construe appellant's liability on the terms of its contract, or by the manifest "justice" of the case. If the latter be invoked, then it seems a sufficient response that Koob and Logan were each ignorant of the insurance effected by the other; neither had the legal right to control the act of the other, nor to prevent the issuance Home Insurance Co. of New York v. Koob, &c. of the respective policies to the other. Therefore the idea which lies at the bottom of the doctrine disfavoring double insurance, to-wit, to prevent the overbalancing selfinterest in the insured to destroy or neglect his building, is wanting in this case; for, unless he knew of the other insurance, and contemplated its possible advantage to him, it could not have influenced his action. But the terms of the policy are, after all, the safest, as they are the legal method of determining the insurer's liability. The contract provides, "If now or hereafter there be other insurance on any property hereby insured, this policy shall be void." It is too well settled to require either argument or citation of authority that an insurance effected by one having an insurable interest in the property will not inure to others having also an interest in the property, and not named in the contract, whether they be joint tenants, remainder-meu, tenants, or lessors. It therefore follows that the thing insured is not the property, but the interest or estate, of the insured therein. We must, then construe the term in the policy, "any property hereby insured," to mean the insured's interest or title in the property described. 3 Joyce, Ins., section 2170, thus states the rule: "The general rule that different persons, each having a different interest in property, may insure that interest, also prevails where different policies are effected by the mortgagor and mortgagee upon the property. The mortgagor may insure the property to cover his interest, and the mortgagee may likewise insure his interest in the property, and it will not be within the meaning of the clause as to other insurance." It is further argued that in this case the mortgagor, Koob, authorized his mortgagee, the building association, to effect the insurance, and therefore the act of the mortgagee was the act of the mort Home Insurance Co. of New York v. Koob, &c. gagor in procuring the Agricultural Company policy. The agreement of the mortgagor was that he would keep the premises insured to the extent, at least, of the mortgage debt. In addition to the language already quoted from Koob's bond, is this statement found therein: "But if we fail to pay promptly when due and payable the said taxes and insurance premiums, . then, at the option of the said association, the whole indebtedness evidenced by this obligation (including any taxes and insurance premiums due or paid by said association) shall at once become and be due and collectible." No express authority is here given the association to contract for insurance upon this property. It may be inferred, though, that upon default by the mortgagor to keep The premises insured to at least the balance of the mortgage debt, with a clause protecting the mortgage therein, the mortgagee was authorized to effect such insurance on the owner's behalf, that is, an insurance of the owner's title and property to the amount of $700 (the sum required by the bond)-with loss payable to the mortgagee as its interest, might appear. But the mortgagee did not do this. On the contrary, it procured an indemnity to itself from loss by fire on its interest in this property. That its assignee charged or attempted to hold the mortgagor liable for the premium for this insurance is not material. The insurance effected by the mortgagee was exactly what he had the right to do without a contract with or the consent of the owner. It was independent of that part of the agreement with the owner quoted above. It shows on its face that it was, and the assignee so testified. We conclude that there was not "other insurance on the prop erty" of appellee Koob within the meaning of that term as construed in law. Home Insurance Co. of New York v. Koob, &c. The case of Insurance Office v. Varble, 103 Ky., 758 (20 R., 556) (46 S. W., 486, 41 L. R. A., 792) is relied on by appellant as sustaining a contrary view. In that case it must be noted that the language of the policy is materially different from the one at bar. In the Varble case it was: "In case of any other insurance upon the property hereby insured, then this company shall not be liable under this policy for a greater portion of any loss sustained than the sum hereby insured bears to the whole amount of in surance on said property issued to or held by any party or parties having an insurable interest therein." This court held that the "insurance companies had the right to place in their policies provisions defining and limiting their several liabilities;" that they, in that policy, "by express and unmistakable language, limited their liabilty so that they would not be required to pay a greater portion of any loss sustained than the sum they respectively insured bore to the whole amount on the property." The insurance held by any party having an insurable interest in the property was, therefore, under the terms of the policy, required to be taken into account. To the same effect, and upon a similar policy to the one construed in the Warble case is insurance Co. v. Williams, 11 C. C. A., 503, 63 Fed. 928. The case of Home Ins. Co. v. Baltimore Warehouse Co., 93 U. S., 527, 23 L. Ed., 868, was an instance where policies were taken out by the warehousemen "for their own and for the owner's benefit." Other policies were taken out on the same goods by the owners. It was held that the policies should bear ratably the loss. not in conflict with the views herein expressed. The other cases cited by appellant (Insurance Co. v. Coons, 14 Ky. Law Rep., 110, and Baer v. Insurance Co., 4 Bush, 242) Vol. 113-24 That case is Home Insurance Co. of New York v. Koob, &c. were cases where all the policies were issued to the same party. ap Pending the negotiation between Koob and pellant's agent for this insurance, the fact of the mortgage on the property was discussed. Appellant charges-and upon that rests one of its defenses-that Koob fraudulently and falsely misrepresented the amount owing on the mortgage debt, and that the misrepresentation was material. The burden upon this plea was, of course, on appellant. To sustain it, its local agent, Lang, was introduced as its witness. He testified that Koob told him that "he was paying off his mortgage;" that it was to some building association; that it was then a balance of $100, $150 or $200. His testimony shows his memory to be very unsatisfactory as to what actually occurred, further than that Koob told him there was some balance, from $100 to $200, owing on the mortgage to the building association. Koob testified that he told Lang of the mortgage; that he had been paying it off, but had stopped; that he thought he would be owing the association $200 or $300 or $400 ballance, "with interest added." His memory does not appear to be much better than Lang's. His testimony indicates him to be an illiterate, ignorant man. In fact, we may easily see that he did not know what balance he was owing on his mortgage. His payment "on dues" amounted then to $195. He doubtless thought, as many persons have, that this sum was to be credited on his debt. If this had been so, the debt would have been $355. There is nothing to indicate that he intended to deceive the company's agent as to the amount of this debt. In this State these and similar statements are not warranties, but are representations only. And under section 639, Kentucky Statutes, it is also provided: "Nor shall any misrepresentation, unless material or fraudulent, prevent a recovery |