it, defeasible by the payment of the sum it is given to secure. Barrett Manufacturing Co. v. Van Ronk, 212 N. Y. 90, 10:5 N. E. 811. A void chattel mortgage does not and cannot transfer or incumber the property described in it. An invalid transfer is no transfer. It is merely the form or semblance, without reality, of a transfer. If the mortgages were invalid, they would not by legal intendment avoid the policy. The defendant seeking to avoid the policy on the ground that the property was incumbered by the mortgages was bound to show they were, as against the insured, mortgages in reality as well as in appearance. * * * [Citing many cases.]
HiscocK, C. J. and MCLAUGHLIN and ANDREWS, JJ., concur with
HOGAN and ELKUs, JJ., concur with CoLLIN, J. Judgment affirmed.14
(iv) CHANGE OF INTEREST, TITLE OR POSSESSION.
WILLIAM SKINNER & SONS SHIPBUILDING & DRY-DOCK
CO. v. HOUGHTON.
Court of Appeals of Maryland, 1900.
921 Td. 68, 48 Atl. 85, 84 Am. St. 485.
Bill by the William Skinner & Sons Shipbuilding & Dry-Dock Company of Baltimore City against Caroline S. Houghton and others. From a decree for defendants, plaintiff appeals. Affirmed in part, and reversed in part.
74 See comments on this ease (1920) 20 Colum. L. Rev. 797 (unfavorable), 69 U. of Pa. L. Rev. 79 (favorable), 7 Va. L. Rev. 152 (unfavorable), 5 Minn. L. Rev. 77 (favorable), 19 Mich. L. Rev. 224 (unfavorable). See also 13 A. L. R. 556.
If the mortgage is valid it is well settled that the insurance is rendered void by the "encumbrance clause" whether the policy was taken out before or after the execution of the mortgage in the absence of a full disclosure to the company. Prentiss-Wabers Stove Co. v. Millers Mut. Fire Ins. Assn. (1927) 192 Wis. 623, 211 N. W. 776, 213 N. W. 632; Niagara Fire Ins. Co. v. Mullins (1927) 218 Ky. 473, 291 S. W. 760, Comment (1927) 16 Ky. L. J. 73. But if a part only of the insured goods is mortgaged the policy is not vitiated. Mecca Fire Ins. Co. v. Wilderspin (1909, Tex.) 118 S. W. 1131, Comment (1909) 8 Mieh. L. Rev. 67.
Where the policy contains no clause against encumbrances, will failure to disclose the existence of a mortgage constitute a concealment avoiding the policy? See the cases in 28 A. L. R. 801.
Suppose the applicant is not asked whether his property is mortgaged, and not knowing its importance does not disclose the existence of a mortgage. Should an encumbrance clause avoid the policy? Is there basis for an estoppel? See Neher v. Western Assur. Co. (1905) 40 Wash. 157, 82 Pae. 166, Comment (1906) 4 Mich. L. Rev. 312.
Suppose the mortgage is discharged before the loss. Is the insurance revived? See Cottingham v. Maryland Motor Car Ins. Co. (1915) 168 N. Car. 259, 84 S. E. 274, L. R. A. 1915D, 344, Ann. Cas. 1917B, 1237, Comment (1915) 24 Yale L. J. 519.