Page:Federal Reporter, 1st Series, Volume 10.djvu/244

232 FEDERAL REPORTER. �This was the very point decided in McCltirc v. Johnson, supra, It was there held that such an action could not be maintained because the money due was not assets belonging to the estate. �And so, in the case before us, the action cannot prevail because the administrator bas no title to the contracts sued on, either by opera- tion of law or by express terms of the instruments. If he had the legal title to the chose in action, and if its proceeds, when collected, were assets belonging to the estate, he could maintain a suit for the money in whosesoever hands found. �Demurrer to answer overruled. �McCeaby, C. J., concurs. ���WaLLEE V. NOETHEBN ASSURANCE C!o. {Circuit Court, D. lowa, N. D. April, 1881.) �1, iNStlEANCB POLICT— PbOVISIOIiS BiNDINO ON iNBtTRKD— WAIVEB NoT PkB- �8UMED. �Wliere the terms of a policj- of flre insurance provide that "if the interest of the assured in the property be any other than the entire, unconditional, and sple ownership of the property for the uses and beneflt of the assured, or if the building stands on leased ground, it must be so represented to these companies and so expressed in the written part of this policy ; otherwise the policy will be void." It is the duty of the party applying for insurance to disclose the nature of his interest in the property to be insured, and from the mere fact that the company's agent made no inquiry concerning the extent of applicant's interest, a waiver of the provision on the part of the Company cannot be pre- sumed. �2. SAME — EXPOBCEMENT OF PnOVISION. �Such provisions must be upheld and enf oreed, not simply on the ground that jt is a warranty to be enforced independently of their materiality, but upon the ground that it calls for the disclosure of material facts. �At Law. On motion for a new trial. �This is an action at law upon a policy of fire insurance to recover damages for the destruction by tire of a certain building. The pol- icy sued on declares that John E. Waller has paid the premium for insuring against loss or damage by fire the property hereinafter de- Ecribed, in the several sums following, to-wit : On his five-story, shin- gle-roof irame building, etc. Said policy further provides as fol- lows: ��� �