that the case should have been withdrawn from the consideration of the jury and a verdict directed for the defendant, it will not be necessary to discuss the questions arising upon the application for the policy. The declaration contained the common counts, and also a special count which set out the following provision of the policy:

"The Mutual Life Insurance Company of Baltimore, in consideration of the representations in the application for this policy which are hereby made a part of this contract and of the premium mentioned in the schedule mentioned below, and of a like premium to be paid weekly, hereby promises to pay, subject to conditions hereinafter set out, to Emma Willey, grandmother, or the person then appearing as beneficiary, upon the receipt of proofs of the death of the insured as hereinafter required, the sum of money stipulated in said schedule."

In the second condition of the policy it is provided that:

"This policy shall be void if upon the date of actual delivery the insured is not alive and in sound health."

The evidence is clear and uncontradicted that at the time of the delivery of the policy, and for a long time prior thereto, the assured was suffering with tuberculosis, and knew that he was afflicted with this disease. He concealed this fact from the company, which would not have issued the policy had it known the insured's condition of health in this respect. Mrs. Willey, the plaintiff, who was present when the application for the insured was signed by the insured, testified that her son had been treated at the State Sanatorium at Sabillasville before the agent solicited the insurance, and that he had been treated there for three weeks. Mrs. Amanda Spamm, who was also present at the time the application for insurance was made, testified that no mention of the fact that the insured was treated at Sabillasville was made either to the agent or to the company's physician who inspected the insured.

Dr. Charles A. Austriam testified that he saw the insured at the Phipps Dispensary on October 1, 1915, and made an examination of him at that time, and that the examination showed that he had pulmonary tuberculosis, pleurisy with effusion and consolidation of the lower lobe. The insured entered the State Sanatorium, at Sabillasville, for treatment on the 22d of November, 1915, and Dr. V. R. Claytor, one of the physicians in charge there, testified in examination in chief that "his sputum was positive, and he had the positive tubercular laryngitis," and on cross-examination he said:

"That he found loss of weight, temperature and high pulse and positive sputum, which were the clinical symptoms of tuberculosis. That the examination was made on November 22, 1915, and that every test made to discover tubercular trouble was responsive. That the only thing he

personally found was the tubercular throat, but that the report, which is the result of the examination made by other physicians, shows that the patient was suffering from tuberculosis, and that in November, 1915, every known test discovered indications of tubercular trouble when applied to Walter E. Willey, and that he responded and showed symptoms of tuberculosis was what was meant when he said he had

all the clinical symptoms of tuberculosis."

Dr. Jacob Cohen testified that he saw the insured on June 23, 1917, at which time he had advanced tuberculosis. and that the outlook was hopeless.

Under the rules of the defendant company, its physician is not required to make an examination of the insured where the policy applied for is less than $300. The policy applied for in this case being for less than that amount, no examination was made. In such cases the physician makes what is called a personal inspection of the applicant, and that was done in this case. Dr. William L. Burke, the defendant's physician, testi

fied that he did not make an examination of the insured for tuberculosis.

The

[1, 2] The provision as to the sound health of the insured contained in the policy was a reasonable and enforceable one. No general definition of unsound health in an insured can be given that would be applicable to all cases, and in many cases that question should be left to the jury under appropriate instructions by the court. question is analogous to that of the falsity or materiality of representations contained in the application for the policy. These questions are ordinarily for the jury to determine, but, as was said by this court in Ætņa Life Insurance Co. v. Millar, 113 Md. 686, 78 Atl. 483, "where the bad faith of the applicant, or the falsity and materiality of the misrepresentation is shown by clear and uncontradicted evidence, the court may so rule as a matter of law; but, where the evidence upon the questions is conflicting or doubtful, they should be submitted to the jury. Fidelity Mutual Life Insurance Company v. Ficklin, 74 Md. 173 [21 Atl. 680, 23 Atl. 197]; Dulaney v. Fidelity Company, 106 Md. 17 [66 Atl. 614]; Mutual Life Insurance Company v. Rain, 108 Md. 353 [70 Atl. 87]; Bankers' Life Insurance Company v. Miller, 100 Md. 1 [59 Atl. 116]; Maryland Cas. Co. v. Gehrmann, 96 Md. 634 [54 Atl. 678]."

In Volker v. Metropolitan Life Insurance Co., 1 Misc. Rep. 374, 21 N. Y. Supp. 456, the policy contained the following provisions:

"No obligation is assumed by the company prior to the date hereof, nor, unless upon said date, the assured is alive and is in sound health."

It appeared that for upwards of three years the assured was afflicted with chronic asthma to such an extent that he was unable to pursue his usual calling, and that ailment,

"And when the full purchase price shall have been paid, the party of the first part undertakes and agrees to give to the parties of the second part a good and sufficient deed in fee simple to the property herein described, which deed shall contain the certain restrictions, conditions and covenants contained in deeds of Linthicum Heights Annex, which restrictions, conditions and covenants fully appear in a deed from the Linthicum Heights Company to James F. McDermott, Jr., et al. See Land Records Anne

Arundel County.

"The parties of the second part agree not to assign their interest under this contract without the written consent of the party of the first part.

"The party of the first part reserves to itself, its successors and assigns, the right to the use of the well located on one of the lots hereby sold, and further reserves a right of way or easement four feet in width across the rear of lots Nos. 82 and 83 and a right of way or easement from the rear of lots 82 and 96 to the well immediately above mentioned.

"The party of the first part undertakes and agrees to make the following improvements, to wit:

"Install a furnace in the main building to heat the first and second floors; install a range in the kitchen to heat the room above; to wire the house and place fixtures in same; build a porch along the front of the house, at least seven feet wide; install bathroom fixtures in the room over the kitchen; clean up the property by removing rubbish on same; place sink in kitchen; repair the shutters that have blown off of the house; run a pipe from the pump to the bathroom with a small tank in the attic, or place an air pressure tank in the basement, at the option of the party of the first part, and install a concrete cesspool; these improvements to be made in thirty days from the date of this agreement."

Walter P. Schmick and his wife entered into possession of the property under the above contract, and occupied the dwelling thereon until the 14th of June, 1916, having paid in the meantime $560 on account of the purchase price.

The dwelling house was destroyed by fire on the 14th of June, 1916, and the Firemen's Insurance Company refused to pay the amount of insurance thereon on the following grounds: (1) Because the policy had not been transferred or made payable to the Linthicum Heights Company as the owner of the property. (2) Because the Linthicum Heights Company did not furnish proofs of loss. (3) Because the policy was avoided by the contract of sale between the Linthicum Heights Company and Walter P. Schmick and wife. On the 12th of June, 1917, the Linthicum Heights Company filed a bill of complaint in the circuit court of Baltimore city against the insurance company to reform the policy so as to make it payable to the Linthicum

[1] Assuming that the rider or indorsement placed on the policy on December 8, 1915, was the result of a mistake which could be corrected by a court of equity, and that the evidence in the case shows a waiver by the defendant of the provisions of the policy requiring proofs of loss, it is clear that under the provisions of the contract of insurance, and the decisions in this state, the policy in question was avoided by the contract of sale between the Linthicum Heights Company and Walter P. Schmick and wife. The policy contains the following provisions:

"This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss.

"The entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * ** if the hazard be increased by any means within the control or knowledge of the insured; or if mechanics be employed in building, altering or repairing the within described premises for more than 15 days at any one time; or if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple; or if the subject of insurance be personal property and be or become incumbered by a chattel mortgage; or if, with the knowledge of the insured, foreclosure proccedings be commenced or notice given of sale of any property covered by this policy by virtue of any mortgage or trust deed; or if any change, other than by the death of an insured, take place in the interest, title, or possession of the subject of insurance (except change of occupants without increase of hazard) whether by legal process or judgment or by voluntary act of the insured, or otherwise; or if this policy be assigned before a loss."

The contract of sale to Walter P. Schmick and wife was made on the 20th of January, 1915, and if the policy had, on December 8. 1915, been made payable to the Linthicum Heights Company of Baltimore City, as the owner of the property, as the appellant contends it should have been in accordance with the letter of December 7, 1915, to J. Arthur Wickham, the interest of the insured would not have been truly stated in the policy, nor was the interest of the Linthicum Heights Company in the property at that time that of unconditional and sole ownership.

In the case of Skinner & Sons' Co. v. Houghton, 92 Md. 68, 48 Atl. 85, 84 Am. St. Rep. 485, the facts of the case, as stated by the court were as follows:

"On the 18th day of February, 1899, Caroline S. Houghton and her husband entered into an agreement with Charles E. Savage by which they agreed to sell and convey to him or his assigns, upon written notice of the acceptance of the agreement within 60 days from its date, certain property in the city of Baltimore for the sum of $50,000. It was agreed that the purchaser should pay the purchase-money within 90 days after the notification of the acceptince, and $200, paid when the agreement was made, was to be credited on the amount. Within the 60 days (on April 14th), Savage assigned his option to the appellant, and notified Mr. and Mrs. Houghton of his acceptance and assignment, to which they gave their assent. On the 11th day of May, 1899, some of the improvements on the property were destroyed by fire, having been insured in eight companies prior to the execution of the agreement. At the time of the fire the Houghtons were still in possession of the property, none of the purchase-money, except the $200, had been paid, and the deed had not been executed."

Two of the insurance companies referred to by the court, viz., the German-American Insurance Company of New York, and the Merchants' & Manufacturers' Fire Insurance Company of Baltimore City, denied all liability, and refused to pay the amount of their policies on the ground that under the provisions thereof the policies were avoided by the contract of sale. The policies contained provisions like the policy involved in this suit. In reference to the effect of the contract of sale upon the title to the property, the court said:

"Under a contract of this kind, in equity, 'the vendee is in fact considered as the owner of the land, and although the vendor may still retain the title, he holds it as trustee for the vendee, to whom all the beneficial interest has passed, with a lien on the estate as security for any unpaid portion of the purchase money.'"

The court held that the contract of sale avoided the policies, and, in reference to the provision declaring that the policies should.

be void "if the interest of the insured be other than unconditional and sole ownership," said:

"The policies before us contain provisions, in addition to what we have already stated, that they should be void if the interest of the insured in the property be not truly stated therein,' and 'unless otherwise provided by agreement and indorsed hereon or added thereto **if the interest of the insured be other than unconditional and sole ownership.' There is no indorsement to the contrary, and therefore it was represented to the companies that the interest of the insured was 'unconditional and sole ownership' when the policies were issued, and under the other provision any change in the interest held when the insurance was taken would invalidate the policy. It would certainly be placing a very liberal construction on these provisions, in favor of the assured, to say that after April 14, 1899, the interest of Mrs. Houghton was still an unconditional and sole ownership.

She

She and her husband were then bound under their hands and seals to give the appellant a good and merchantable fee-simple title to the property within 90 days from April 14th. was not then the sole owner, as the appellant then owned the equitable estate in the property, and any loss by fire would be sustained by it. In equity it was regarded as the owner. There are a number of cases cited in note to 13 Ency. of Law (2d Ed.) 234, deciding that one who is in possession of real property under a contract to purchase, and not in default in the payment. is in equity the owner of the land, and hence is entitled to insure as 'sole and unconditional owner,' and on page 235 of the same volume it is said: 'A vendor in a land contract, who has admitted the vendee into possession, is not sole and unconditional owner, although he retains the legal title.' We do not understand why the possession of the vendee should make any difference in determining whether the vendor is the sole and unconditional owner. If the vendor conveys by deed all his interest and takes a mortgage for the purchase money, but remains in possession, he would not be the sole and unconditional owner. And if he has done an act which vests another with such an estate as to make him sustain the loss, if destroyed or injured by fire, and cause him to be regarded in equity as the owner, as has been done here, how can it be said that the interest of the vendor is still that of unconditional and sole ownership?"

[2] The learned counsel for the appellant insists that the rule announced in Skinner & Sons' Co. v. Houghton, supra, cannot apply in this case, because "in substance and effect the agreement with the Schmicks was simply a contract of rental at $25 per month, with an option to purchase at $3,600." But the language of the contract is:

"This agreement *** witnesseth that the said party of the first part does hereby bargain and sell unto the parties of the second part, and the said parties of the second part do hereby purchase from the said party of the first part,"

etc.

In the case of Swartz v. Realty Co., 106 Md. 290, 67 Atl. 283, the court said:

"Since the decision in Brewer v. Herbert, 30 Md. 301 [96 Am. Dec. 582], it has been the law of this state that under such a contract as this, in equity, 'from the time the owner of an estate enters into a binding agreement for its sale, he holds the same in trust for the purchaser, and the latter becomes a trustee of the purchase money for the vendor, and, being thus in equity the owner, the vendee must bear any loss which may happen, and is entitled to any benefit which may accrue to the estate in the interim between the agreement and the conveyance.' The terms of the contract in that case were in effect the same as those in this-there the contract said, has this day sold,' and here the appellee 'does hereby bargain and sell,' and the appellant does hereby purchase.' Judge Miller said, 'By such terms the title in equity passes from the date of the contract,' and he then went on to show that the fact that possession was to be given in the future (six months in that case, but immediately here) did not affect the question."