Massachusetts was the locus contractus, and the law of Massachusetts should govern the construction of the the contract if different principles prevailed in different jurisdictions; but the law herein applicable, as administered by this court and by the courts of Massachusetts and New York, is the same, and, it is submitted, supports the position of the plaintiff in error. Lohnes v. Ins. Co., 121 Mass. 439; Shawmut Sugar Refining Co. v. Ins. Co., 12 Gray, 439; Markey v. Ins. Co., 103 Mass. 78, 93; Ins. Co. v. Wolff, 95 U.S. 326; New YorkLife Ins. Co. v. Fletcher, 117 U.S. 519; Bush v. Ins. Co., 63 N.Y. 531; Van Allen v. Ins. Co., 64 N.Y. 469; Walsh v. Ins. Co., 73 N.Y. 5; Marvin v. Ins. Co., 85 N.Y. 278; Cole v. Ins. Co., 99 N.Y. 36. Mr. William Nathaniel Cogswell for defendant in error.

[I]n Worthington v. Bearse, 12 Allen. 382, it was held, on great consideration by this court, that if the assured in a marine policy temporarily parts with his interest in the property insured, and afterwards buys it again, the policy will revive, if there are no express provisions making it void, and there is no increase of risk.Hinckley v. Germania Fire Ins. Co., 140 Mass. 38, 1 N.E. 737, 739 (1885). The Supreme Judicial Court then applied the principle to another occasion for suspension of a policy:

But where the mortgage clause provides in addition, as does the Standard Mortgage Clause, that the failure of the mortgagee to give notice will render the policy void, the great weight of authority and sound reason sustain the proposition that this is a condition the breach of which will defeat recovery upon the policy. Cole v. Germania Fire Ins. Co., 99 N.Y. 36; Newark Fire Ins. Co. v. Pruett, 75 Colo. 564; Continental Ins. Co. v. Anderson, 107 Ga. 541; Trust Co. of St. Louis v. Phoenix Ins. Co., 201 Mo. App. 223, 210 S.W. Rep., 98; Ormsby v. Phoenix Ins. Co., 5 S. Dak., 72; Pioneer S. L. Co. v. St. Paul F. M. Ins. Co., 68 Minn. 170; Huppfeldt Sons v. Boston Fire Ins. Co., 104 N.Y.S., 659; Galantshik v. Globe Fire Ins. Co., 31 N.Y.S., 32. The authorities upon this question are collected in 3 Cooley Briefs on Insurance, Sections 2393-2395.

Compliance with the provision requiring the mortgagee to give notice of any change of ownership or occupancy which shall come to his knowledge is an absolute condition, and noncompliance therewith will forfeit the policy as to the mortgagee. Ormsby v. Phoenix Ins. Co., 5 S.D. 72, 58 N.W. 301; Galantschik v. Globe Fire Ins. Co., 10 Misc. Rep. 369, 31 N.Y. S. 32, 34; Cole v. Germania F. Ins. Co., 99 N.Y. 36, 1 N.E. 38, 39; Newark Fire Ins. Co. v. Pruett, 75 Colo. 564, 227 P. 823; Trust Co. v. Phoenix Ins. Co., 201 Mo. App. 223, 210 S.W. 98; Gasner v. Metropolitan Ins. Co., 13 Minn. 483 (Gil. 447); Boston Co-Op. Bank v. American Ins. Co., 201 Mass. 350, 87 N.E. 594, 23 L.R.A. (N.S.) 1147; McKinney v. Western Assur. Co., 97 Ky. 474, 30 S.W. 1004; Bilson v. Manufacturers' Ins. Co., Fed. Cas. No. 1410; Brecht v. Law, Union Crown Ins. Co. (C.C.A.) 160 F. 399, 18 L.R.A. (N.S.) 197. So far as the mortgagor was concerned, the covenants and conditions of the policy had been clearly violated, and the company was not liable to him. Atlas Red. Co. v. New Zealand Co. (C.C.A.)

By the failure of the mortgagee to comply with the condition of the policy as to notice of change, there being no waiver of the condition, there can be no recovery upon the policy. (Civ. Code, sec. 2611; Wood on Fire Insurance, sec. 144; Ostrander on Fire Insurance, sec. 123; Wenzel v. Commercial Ins. Co., 67 Cal. 438; California State Bank v. Hamburg etc. Ins. Co., 71 Cal. 11; Shuggart v. Lycoming Ins. Co., 55 Cal. 408, 414; Ormsby v.Phoenix Ins. Co., 5 S. Dak. 72; Kabrich v. State Ins. Co., 48 Mo. App. 393; Byers v. Farmers' Ins. Co., 35 Ohio St. 606; 35 Am.Rep. 623; Blumer v. Phoenix Ins. Co., 45 Wis. 622; Galantshik v.Globe Fire Ins. Co., 10 Misc. Rep. 369; 31 N.Y. Supp. 32; Hand v.Williamsburgh Fire Ins. Co., 57 N.Y. 41; Genessee Falls etc.Assn. v. United States Fire Ins. Co., 16 N.Y. App. Div. 587; 44 N Y Supp. 979; Cole v. Germania Fire Ins. Co., 99 N.Y. 37.) The contract between the American Insurance Company and the Northwestern National Insurance Company was, as between them, a contract for reinsurance, in which parties insured under American insurance policies had no interest. (Civ. Code, secs. 2646- 49; Commercial Union Assur. Co. v. American Cent. Ins. Co., 68 Cal. 430.)

The effect of the provision, when there is a substantial increase of the risk known to the assured, is to invalidate, the policy unless the company assent to the changed conditions. Although this construction avoids the policy by reason of the acts of persons other than the assured, and in respect to property other than that insured, yet where the stipulations of the contract plainly so provide, it has been upheld in this and other jurisdictions. Shepherd v. Insurance Co., 38 N.H. 232, 239; Davis v. Insurance Co., 67 N.H. 335; Lyman v. Insurance Co., 14 Allen 329; First Cong. Church v. Insurance Co., 158 Mass. 475; Daniels v. Insurance Co., 48 Conn. 105; Williams v. Insurance Co., 57 N.Y. 274; Cole v. Insurance Co., 99 N.Y. 36; Franklin Insurance Co. v. Gruver, 100 Pa. St. 266; Rife v. Insurance Co., 115 Pa. St. 530; Straker v. Insurance Co., 101 Wis. 413; German-American Insurance Co. v. Steiger, 109 Ill. 254. This clause in the policy should, however, receive a reasonable construction. From the nature of things, there must necessarily be more or less changes in the situation and circumstances affecting fire insurance risks, which, while they may be said to theoretically increase the risk, yet do not materially increase it. It must therefore have been intended that this contract should be subject to and unaffected by these slight changes unless we are to understand that this clause was expressly designed to avoid the contract and make it fail to accomplish the object sought in all such contracts, — the protection of the property described in the policy.

Where execution of the mortgage might have been lawful and effective there is a presumption in its favor if the contrary requires us to presume fraud. The widow knew what she needed for her comfort and support. If she collected a note or sold a horse and spent the proceeds, and no further facts were shown, I think we should not presume that she exceeded her right, and so defrauded the next of kin. Where the truth of representations is a condition precedent to the liability of an insurer, the insured is not bound to prove that truth in the first instance, but may stand upon the presumption of innocence. ( Cole v. Germania Ins. Co., 99 N.Y. 42.) Where a guardian executed a release under seal, which in certain contingencies he might lawfully have done, the burden of impeaching it was thrown upon the ward. ( Torry v. Black, 58 N.Y. 190.)

This they omitted to do, and such omission made the act or neglect complained of that of the plaintiff, instead of the mortgagor; consequently, the case cannot fairly be said to come within the operation of the mortgage clause. ( Cole v. Germania Fire Ins. Co., 99 N.Y. 36.) Our attention has been called to several alleged errors of the trial court in the exclusion of testimony offered for the purpose of establishing the fact that the defendant's agent, at the time the policy was issued, was shown the deed to Maciejewski and his wife, and was thereby informed as to the real condition of the title.