In Error to the Circuit Court of the United States for the Western Division of the Western District of Washington.

The pleadings of the parties present the questions to be decided. From those pleadings these, among other, facts appear:

The action was upon three certain policies of insurance, all of which were issued in pursuance of an arrangement made between the parties in the month of Juno, 1904, when the first of the policies was issued. Each of the policies contain, among others, these conditions: “This entire policy shall he 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 inieresi: of the insured in the property he not truly stated 1 herein, or in ease 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. * * * This entire policy * * * shall be void * * *

if the hazard be increased by any means within the control or knowledge of the insured, * * * or if the interest of the insured lie other than unconditional and sole ownership, * * * or if the insurance, be personal property and bo or become incumbered by a chattel mortgage, or if, with the knowledge of the insured, foreclosure proceedings he 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 ItheJ 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.”

Each of the policies also contain this clause: “This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hei-eto, and no officer, agent, or other representative of this corporation shall have power to waive provision of condition of this policy, except such as by terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent, or representative shall have such power, or be deemed or held to have waived such provision or conditions, unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.”

The plaintiff paid the defendant a premium of S390 on the first policy, and a premium of $130 on each of the other two, all of which were issued upon the representation of the plaintiff that the property covered by them was not mortgaged. The property insured consisted of a certain sawmill, with the appurtenant and incidental buildings, tramways, engines, boilers, and other machinery and fixtures, all of winch property was involved in a certain suit brought in the court below in the year 1903. by the Tacoma Mill Company, a corporation, against the plaintiff in the present action, wherein the Tacoma Mill Company sought to foreclose a certain chattel mortgage executed to that, company on the 14th day of May, 1900, by one George Lawler, in which foreclosure suit Perry appeared, and answered, and set up in defense that the property upon which he subsequently obtained the insurance here in question was not covered by the mortgage executed by Lawler io the Tacoma Mill Company. But the court below, in the foreclosure suit, adjudged that it was. and entered a decree directing the sale of the said property to satisfy the said mortgage, attorney’s fees, and costs, and further directed such sale to be made by and under the supervision of its masier in chancery, in pursuance of which decree, and of an order of sale issued by virtue of it, on the 3d day of October, 1904, the said masier levied upon (lie property covered by the insurance policies here in question, dispossessed the said A. I’. Perry thereof, and as such master took actual anil physical possession of the properly, and placed it in charge of a custodian by him appointed, and gave due notice that he would, in pursuance of the said decree and order of sale, on the 7th day of November, 1904, at the hour of 11 o’clock a. m., solL the said property at public auction to the highest bidder.

Subsequently, to wit, October 7, 1904, Perry took an appeal from the aforesaid decree of foreclosure to this court, filing, among other tilings, in the court below, a supersedeas bond, wherein lie agreed, among other things, as follows: “Now, therefore, if the said A. P. Perry, principal herein, shall well and truly prosecute the said appeal, and shall pay all costs and damages that may be adjudged against him by reason of said appeal, or the dismissal thereof, and if the said A. P. Perry, principal herein, shall hold all of ihe property levied on and seized by the United States marshal and the master in chancery under and pursuant to said decree subject to the proper order and decree that may be entered finally in said cause by said Circuit Court of Appeals of the United States, and shall not waste or destroy any pari; thereof, but shall hold the same, as above stated, subject to the order and disposition of this court, or of the said Circuit Court of Appeals, then this obligation shall be null and void, otherwise it shall have full force and effect.”

While the said appeal was pending, and the said supersedeas bond was in full force and effect, all of the property covered by the policies of insurance was destroyed by fire. In November, 1904, Perry represented to one Thornton, an adjuster of the defendant company, that there was no mortgage or incumbrance .upon the insured property at the time of its destruction, and in his proofs of loss, which were delivered to the defendant, and which proofs were duly verified by Perry on November 26, 1004, he stated, among other things, this: “That there had been no changes in the title, use, occupation, location, possession, or exposures of said property since the issuance of said policies, and that no incumbrances existed on any portion of the premises or property at. the date of said fire.”

On or about December 19, 1904, and prior to the commencement of the present action, a writ of garnishment was issued out of the court below in the foreclosure suit of the Tacoma Mill Company against Perry, and served upon the defendant insurance company, which writ recited that the Tacoma Mill Company had recovered a judgment against Perry in the sum of $1,000, besides interest and costs, and which said writ of garnishment required the defendant company to appear in the court below and there answer upon oath what, if anything, it owed Perry when the said writ was served upon it, and what personal property or effects, if any, of the said Perry, it had in its possession or under its control, which garnishment proceedings are still pending, and the judgment upon which they are based is still unpaid.

The .defendant company, contending that the policies in suit were void from the beginning by reason of the representations made by the insured to it, and by reason of the breach of their conditions, admits and concedes that Perry is entitled to receive back the $520 paid to it as premiums upon the first and third policies issued, and avers that it would have tendered the same to him, and would have brought the said premiums into court, but for tho aforesaid garnishment proceedings, and is ready, and willing, and able to pay the same “to the said A. P. Perry, or to the said Tacoma Mill Company under said garnishment for the said A. P. Perry, as. the facts, and the law, and the rights of the parties, respectively, may be determined.”