*644 should proceed; that the net proceeds of | the sale which should appear to represent the value of that part of the real estate described in the first two deeds of trust, with the buildings and improvements thereon, after deducting therefrom the aliquot parts of the costs, commissions, expenses, and charges of the suit chargeable against such part, should be applied towards the payment of the claims of Pepper, and the residue of such net proceeds should be applied towards the claims of Mrs. Gray; that, if the net proceeds of the property described in the first two deeds of trust should exceed the amount of the claims of Pepper, the excess should be applied towards paying the claims of Mrs. Gray, if the same should remain unsatisfied after applying the net proceeds of sublot A; that the net amount of rents in the hands of the receiver, after deducting costs, commissions, expenses, and repairs, should be applied to the payment of the taxes theretofore paid by Pepper and the insurance premiums properly paid by him, and to the payment of taxes due and unpaid, and the residue of the receipts from rents should await the further order of the court; and that, if the net proceeds of the sale applicable to the claims of Pepper should prove insufficient to discharge them, he should recover from Shepherd whatever amount might remain due of the claims so decreed to be due by Shepherd to Pepper, after the application thereto of the net proceeds of sale, and should have execution therefor as at law. Shepherd, Bartlett, Bacon, and Cross appealed to the general term from this decree; Mrs. Gray appealed from so much of it as directed the sale of sublot A; and Pepper also appealed from it. *The court in general term, on the 29th of October, 1885, affirmed the decree of the special term of March 26, 1885, with these modifications: It directed that the inquiry as to the relative values of the two parcels of property should take place after the sale had been made; that, if the debt due to Mrs. Gray should be satisfied otherwise than by applying thereto her proper share of the proceeds of the sale, the entire proceeds of the sale of lot 3 should be applied to the payment of Pepper's debt and interest, or if the proportion of such proceeds set apart by the decree to satisfy Mrs. Gray's debt should more than suffice to satisfy it, then any surplus of such proceeds should be paid over to Pepper on account of his debt and interest; and that the balance of rents remaining in the receiver's hands, after deducting the payments to be made out of such rents as specified in the decree, and after paying interest to Pepper on the sums advanced by him for taxes and insurance premiums, should be paid by the receiver to Pepper on account of any balance of principal and interest, as decreed, that should remain due after applying the proceeds of lot 3, as directed by the decree to be apportioned and applied. It also affirmed the orders dismissing the two petitions filed by Shep- | herd on the 24th of March, 1885, and charged Shepherd with the costs of the appeal. Shepherd, Cross, Bacon, Bartlett, and Mrs. Gray appealed in open court to this court from the decree of October 29, 1885, the ap peal was allowed, and the amount of the supersedeas bond on behalf of the defendants other than Mrs. Gray was fixed at $1,000, and that on her behalf at $100. The appeal of Pepper was abandoned. The defendants, other than Mrs. Gray, gave the bond required of them. Mrs. Gray did not give the necessary bond; and, although the record was filed in this court on the 9th of October, 1886, she took no action to perfect her appeal to this court until the case came on for hearing, on the 26th of November, 1889, when she offered to the court to be filed a proper bond in the sum of $100. No citation was necessary on her appeal, as she had taken it in open court, the record had been duly filed in this court, on October, 9, 1886, and, under the circum-) stances, we will permit the bond on behalf of Mrs. Gray to be filed nunc pro tunc as of the 26th of November, 1889, and her appeal to stand as perfected. At the time the loans were made by Pepper to Shepherd, Shepherd claimed to own, and agreed to give as security therefor, the land and improvements situated at the north-east corner of Connecticut avenue and K street, fronting 43 feet 9 inches on K street and 109 feet inch on Connecticut avenue, containing 8,466.22 square feet, known as "Lot No. 3, " in Shepherd's subdivision of lots in square No. 164. The improvements covered nearly the whole of that lot, the portion not so covered being inclosed and used in connection_with_the house. It was the intention of both Pepper and Shepherd that the whole of this property should be included in the deeds of trust; and if Pepper had any knowledge, information, or suspicion to the contrary he would not have loaned any of the money. Shepherd testifies that when he executed the deeds of trust he supposed that they embraced the whole property. On the piece of land known as "Sublot A," being that part of lot 3 which fronts 28 feet 2% inches on Connecticut avenue, and has such a depth that it contains 3,656 square feet, there had been actually constructed at the time a portion of the dwelling-house, which includes the coal-vaults, the laundry, the servants' apartments, and a portion of the picture gallery. It is not denied by Shepherd that the debts due by him to Pepper are bona fide debts, and are overdue, and their existence and amounts are satisfactorily proved. The sole defense of Shepherd amounts to this: that by the uncertainty and delay of the law, and by mistakes in the legal proceedings, Pepper has lost all right to the execution of the trusts created for his benefit; and it is urged that, by rea. son of the proceedings in the prior suit brought by Pepper, he is estopped from maintaining the present bill. The opinion of the court in general term, delivered by Mr. Justice MERRICK, is reported in 4 Mackey, 269. It states that when the decree of May 12, 1879, in the suit brought by Pepper, came to be made, there was by inadvertence an error in the description of the property in the decree, by leaving a blank in the designation of the trust-deed, the result of which was that the decree was uncertain in itself, and practically void on account of the uncertainty in its description of the property' *646 ⚫647 debts, recognizing the right of Mrs. Gray to her share of the proceeds of sale according to the apportionment before indicated, but dedicating the rents primarily to the satisfaction of the debts due to Pepper, to primary property upon which the house is built. We concur in these views of the general term. The bill in the first suit brought by Pepper was a bill merely to substitute a trustee in the place of the trustees in the first two deeds of trust. The prayer of the bill was that such trustee be appointed, with directions and authority forthwith to execute all the trusts reposed by the first two deeds of trust in the trustees mentioned therein. It does not pray that an officer of the court shall make the sale, or that the trustee to be appointed by the court shall make the sale under any power to be given to him by the court, but it prays that he may execute the trusts under the deeds of trust. Moreover, the decree of May 12, 1879, declares that it is made" without prejudice to all other rights of defendant. This reserved the right of Shepherd to be heard on the question of the right of Pepper to foreclose under the deeds of trust. The present suit is a suit for foreclosure, and in it all defenses to the claims of Pepper were open to be made by Shepherd. In respect of parties, in respect of subject-matter, and in respect of the relief prayed for, the two bills brought by Pepper are different; and none of the questions involved in the pleadings in the present suit were involved in or adjudicated in the first suit brought by Pepper. Still further, the uncertainty and inoperative character of the decree of May 12, 1879, make the whole suit fruitless, and of no more effect than if it had never been commenced. As Bradley was trustee in each of the first two deeds of trust, and as the decree appointed Johnston to be trustee in the place and stead of Bradley in but one deed of trust, which was so described that it could not be identified, the whole transac-gether with the proceeds of the sale of the tion became uncertain and void. It resulted from this, as the opinion states, that there was no effective appointment of a trustee, and no effective sale; and the bill in the suit brought by Shepherd was dismissed on the ground that there was no cloud upon the title, because the sale itself was a nullity. The opinion further states that, while Shepherd averred in his answer that the sale to Pepper was a nullity and passed no title, and Mrs. Gray by her answer averred the same thing, they were now taking the ground that Pepper had no right to have a second sale of the property, because, having bought under the first sale, he must abide thereby; in other words, that, although he acquired no title under the first sale, he is estopped by that sale from having it sold again. The opinion adds that this is a defense which a court of equity cannot entertain. It also considers the point taken by Mrs. Gray, that, inasmuch as she is the first incumbrancer on sublot A, Pepper cannot have the whole property sold without first discharging her entire claim, and says that the two pieces of property had been held in a general ownership; that the testimony showed that to sever them would be destructive of the value of both; that, although Pepper had not brought home to the knowledge of Mrs. Gray the equitable mortgage as between him and Shep herd, yet the fact of the building being up. on the two lots, and the further fact that, if there is to be a sale, the whole property ought to be sold together, because the value of both would be decreased if they were sold separately, constituted a case where a court of equity ought to order all the property to be sold together; that it would be inequitable to compel Pepper to redeem the whole of the debt to Mrs. Gray as a condition of the sale of sublot A, because Mrs. Gray is entitled to only an in. considerable portion of the incumbered premises, except in subordination to the claims under the first two trust-deeds; and that the decree of the special term, in giving to Mrs. Gray such portion of the proceeds of sale as should be determined to be the value of her interest in sublot A, upon testimony as to the relative values of the two properties, gave to her all that she was entitled to in equity. As to the rents and profits, the opinion said that whereever property subject to a lien has been brought within the domain of a court of equity, and a receiver of it is appointed, the rents and profits in the hands of the receiver will be applied, along with the corpus of the fund, to satisfy the lien, after paying charges such as taxes and insur-erwards, when Shepherd bought in the ance; that the special term properly directed the application of the rents to pay off premiums of insurance and taxes which had accrued; but that the decree ought to be modified by directing that the residue of the rents should go to make up any deticiency in the proceeds of the sale of the two properties to satisfy the corpus of the For the same reason Pepper cannot be regarded as having made any election, in the first suit brought by him, to enforce a sale of the property described in the first two deeds of trust, aside from a sale with it of sublot A, so as to be estopped from now asserting a lien upon sublot A. When the first bill was filed by Pepper, he knew that Shepherd had merely a tax-title to sublot A; and Shepherd, in his answer to that bill, averred that the title to sublot A never belonged to him, and that he theretofore purchased what is called a tax-title to sublot A, but it turned out to be void and of no effect. Therefore Pepper could not at that time have attempted to reform the first two deeds of trust so as to include sublot A, because Shepherd then had no title to that sublot. But the fact that both Pepper and Shepherd agree that it was intended by them that the first two deeds of trust should include sublot A gave Pepper a right to assert an equitable mortgage against that sublot; so that aft proprietary title to it, as the evidence shows he did, Pepper was for the first time in a position to assert a lien against it. It is, we think, very plain that Pepper acquired no title by the deed to him under the sale by the trustees, and that the decree dismissing the bill filed by Shepherd had no effect to establish any legal title in *650 049 Pepper to the real estate in question. Even if resort may not be had to the opinion of Mr. Justice JAMES, still it is manifest that the propositions stated in that opinion are sound, namely, that if the decree of May 12, 1879, was uncertain on its face, in the respects and to the extent before mentioned, the alleged title of Pepper, through the deed from the trustees to him, was not a cloud upon the title of Shepherd, and therefore the court could not grant Shepherd the relief he prayed for in the bill filed by him, and that bill was properly dismissed. This view of the case is taken by Pepper in his bill in the present suit, because he says therein, in regard to the decree of May 12, 1879, and the opinion of Mr. Justice JAMES, "that, as it appears by the said opinion of the court that the said decree did not give to the said Johnston any power to sell, said decree was, in effect, an adjudication upon and favorable to the averments in said Shepherd's bill of complaint in said court that said sale was made without authority, and the deed of said Philip and Johnston was null and void, and, as the said Shepherd has always averred and insisted that said decree was void and said sale a nullity, and to the end that said lot 3 of said Shepherd's subdivision may be sold as a whole, the complainant files this bill in order that an undisputed title to the whole property may be obtained by means of foreclosure proceedings under the order and decree of this court." Then the bill prays, accordingly, "that a trustee or trustees may be appointed by this court to sell the whole of lot 3, in A. R. Shepherd's subdivision of square numbered 164, with the improvements thereon." Therefore it is not true that Pepper is still asserting a legal title in himself. * We think that Pepper is entitled to have the whole of lot 3 sold. It was omitted, at least, by accident from the first two trust-deeds, when both parties supposed they covered it. Lot 3 embraces not only sublot A, but the property covered by the first two deeds of trust. Shepherd, in his answer to the first bill filed by Pepper, said that, in his opinion, it would be impossible to make a sale and division of the said property under the said deed of trust without irreparable injury to, if not total destruction of, a large portion of the dwelling house which is erected upon the said lot; that the said dwelling-house would be entirely incomplete without the addition of that portion called the 'Picture Gallery;' that the servants' apartments and the laundry and drying-room, etc., are underneath the said portion of said dwelling-house, as well as the heating apparatus for a large portion of the house; and that, if the said sublot A, which is not included in the deed of trust of the said complainant, shall be separated from that portion which is included in the said deed of trust to the complainant, a dividing line would not only take off the said picture gallery, but would take off and destroy a portion of the back part of the main dwell ing-house." In regard to Mrs. Gray, the letter to her, written by Mr. Brown of the firm of Fitch, Fox & Brown, who were negotiating for her the loan to Shepherd, the letter being dated April 18, 1876, speaks of the loan as one "to be secured by a second mortgage, the prior mortgage being for $45,000." Besides this, the first two deeds of trust were recorded, respectively, June 3, 1874, and March 24, 1875, and they conveyed, to secure Pepper, the premises described in them, "together with all the improvements, ways, easements, rights, privileges, and appurtenances to the same belonging or in any wise appertaining, and all the estate, right, title, interest, and claim whatsoever, whether at law or in equity, of the said parties of the first part, of, in, to, or out of the said piece or parcel of land and premises." The improvements and easements in question were visibly necessary for the dwelling-house as then constructed, and were visibly upon, or required the use of, sublot A, as stated by Shepherd, as before recited. Mrs. Gray is only a mortgagee, and not the owner in fee, of sublot A; and her interest in the property is subject to the prior and subsequent interests of other parties, as those interests are usually ascertained and administered by a court of equity for the benefit of all concerned. It is not equitable that she should be allowed to use her mortgage on sublot A to prevent a sale of the entire lot 3. Her only right can be to have the proceeds of sublot A applied first to the payment of her debt; and that right is secured by the decree appealed from. The present bill is one to obtain a decree for the sale of incumbered premises, and the application of the proceeds of sale to discharge the incumbrances according to priority. The debts to Pepper and to Mrs. Gray are overdue; and under such circumstances a court of equity, on the application of a junior incum-, brancer, will provide for the sale of the entire incumbered property, if the circum-* stances of the case show that the interests of the mortgagor and of the incumbrancers require the sale. Finley v. Bank, 11 Wheat. 304, 306; Hagan v. Walker, 14 How. 29, 37, 35: Jerome v. McCarter, 94 U. S. 734, 735, 786, 740; Hill v. Bank, 97 U. S. 450, 453, 454; Woodworth v. Blair, 112 U. S. 8, 5 Sup. Ct. Rep. 6; Hefner v. Insurance Co., 123 U. S. 747, 754, 8 Sup. Ct. Rep. 337; Vanderkemp v. Shelton, 11 Paige, 28. This authority is properly exercised in the case of deeds of trust, where all the incumbrances are due, and where the plaintiff has a first lien on some of the property sought to be sold, and where all the incumbrancers are parties to the suit. Here Pepper has a first lien on the bulk of the property sought to be sold, and a second lien, as decreed, on the small remaining portion; and the debts secured by the first two deeds of trust were all overdue when the bill in this case was filed, as well as the debt due to Mrs. Gray. Under such circumstances, the mere non-assent of Mrs. Gray ought not to prevent the court from doing what is equitable in regard to the claims of Pepper, as well as those of herself. There was no error in the dismissal of the two petitions of Shepherd, filed in March, 1885, nor in entering a personal decree against him for any deficiency which should remain after exhausting the property covered by the deeds of trust. The grossly unjust, on the facts developed in this case, to appropriate the rents in the hands of the receiver to the use of Shepherd. fact of the bringing of the suit at law up- | sity of his appointment. It would be on the notes, by Pepper against Shepherd, in April, 1880, was set up in the answer of Bradley to the bill in the present suit, and was therefore in issue; but it was not shown in defense that Shepherd had ever been served with process in any such suit at law, or had appeared in it, voluntarily or otherwise. Moreover, the principal notes given to Pepper were not barred by limitation when the bill in this case was filed. As to the interest notes or coupons, although some of the unpaid ones for each of such two principal notes had been overdue more than three years when the bill was filed, yet it makes a claim to recover all the interest, and Shepherd does not, in his answer, set up the statute of limitation as a bar to any part of the principal or interest claimed. The bill in this suit prays for general relief, and a decree for a deficiency is a necessary incident of a foreclosure suit in equity. It is provided as follows by section 808 of the Revised Statutes relating to the District of Columbia: "The proceeding to enforce any lien shall be by bill or petition in equity, and the decree, besides subjecting the thing upon which the lien has attached to the satisfaction of the plaintiff's demand against the defendant, shall adjudge that the plaintiff recover his demand against the defendant, and that he may have execution thereof as atlaw." This provision was interpreted by this court in the case of Dodge v. Trust Co., 106 U.S. 445, 1Sup. Ct. Rep. 335, where it was held thatit authorized a decree in personam against the debtor for the balance remaining due after the proceeds of the sale of lands covered by a mortgage, or a deed of trust in the nature thereof, had been applied to the satisfaction of the debt. The present cause is of the same character of foreclosure proceeding as that involved in the case cited. It was proper for the court under the bill as it stands and the statute on the subject, to make a personal decree against Shepherd for a deficiency and the matter of granting the prayers of his petitions filed in March, 1885, was a question of discretion in the court below, and not reviewable. As to the question of the disposition of the rents in the hands of the receiver, we think the action of the court below was proper. The pecuniary condition of Shepherd, his failure to pay taxes, premiums of Insurance, or interest, the inadequacy of the property to pay the claims of Pepper and Mrs. Gray, and the diversion of the income from rents, from making such payments, to the use of Shepherd, up to the time of the appointment of the receiver, were adequate grounds for the appointment of the receiver. Kountze v. Hotel Co., 107 U. S. 378, 395, 2 Sup. Ct. Rep. 911; Grant v. Insurance Co., 121 U. S. 105, 7 Sup. Ct. Rep. 841. The court, through its receiver, took possession of the rents in order to preserve them for that party to the suit who should ultimately be found to be equitably entitled to them. Hitz v. Jenks, 123 U. S. 297, 306, 8 Sup. Ct. Rep. 143. The various reports of the receiver contained in the record, as to his payment of taxes, premiums of insurance, and the expenses of repairs on the building, show the neces It is contended on behalf of Shepherd that the decree appealed from is erroneus, because it allows interest at the rate of 9 per centum per annum on the principal of the notes, from June 1, 1879, and March 22, 1880, respectively until paid; and it is urged that the interest should have been fixed at the rate of 6 per cent. from the date of the decree, March 26, 1885, on the ground that that was the rate of interest fixed by the statute on judgments and decrees. Section 713 of the Revised Statutes, relating to the District of Columbia, provides as follows: "The rate of interest upon judgments or decrees, and upon the loan or forbearance of any money, goods, or things in actions, shall continue to be six dollars upon one hundred dollars for one year, and after that rate for a greater or less sum, or for a longer or shorter time, except as provided in this chapter." Section 829 of said Revised Statutes provides as follows: "Upon all judgments rendered on the common-law side of the court in actions founded on contracts, interest at the rate of six per centum per annum shall be awarded on the principal sum due until the judgment shall be satisfied, and the amount which is to bear interest, and the time from which it is to be paid, shall be ascertained by the verdict of the jury sworn in the cause." Section 714 authorizes parties to contract in writing for the payment of interest at the rate of 10 per cent. per annum. It is urged that the decree is a decree which fixes the amount of each of the debts due by Shepherd, and says that those sums are "hereby decreed to be due and payable' by Shepherd to Pepper, with interest, etc.; that this is the language of a judgment; and that almost the same language is employed in reference to the accrued interest. The decree provides that, if the net proceeds of the sale shall prove insufficient to discharge the claims of Pepper, he shall have and recover of Shepherd whatever amount may remain due of the claims decreed to be due by Shepherd to him, after the application thereto of the net proceeds of sale, and shall have execution therefor as at law. It is contended, therefore, that, as the decree ascertained the amount of the debt still due, and fixed the rate of interest on it, it thereafter drew interest by virtue of the decree, and not by virtue of the terms of the contract, because the contract was merged in the decree. We think, however, that on the face of the decree the court did not intend to, and did not, merge the contract in the decree; but merely fixed the amount due according to the terms of the contract on the payment of which, before the day fixed, the decree would not go into effect, but the case would be dismissed. The statute has no application, except as to the rate of interest charged on the deficiency which shall be found to exist after applying the net proceeds of sale to the debt, and the decree does not provide for interest in excess of 6 per cent. per annum on such deficiency. In regard to allowing interest on the princi *111 pal of the notes at the rate of 9 per cent. per annum until paid, it is to be said that such was the contract in each note. It was stated at the bar that Hanna, one of the trustees appointed by the decree of the special term to make the sale, had died. If so, the court below will have power to appoint a new one in his place. The decree in general term is therefore affirmed. MILLER, J. I dissent from so much of the judgment of the court in this case as requires the entire property to be sold together, and make provision afterwards for dividing the proceeds according to the val uation that may be made to ascertain how much of the money should go to appellant Maria Gray. I am of opinion that she has a right to have the piece of ground, on which her mortgage is declared to be the first lien, sold separately, so that she can bid whatever sum she may see proper in satislaction of her mortgage. If this sum should be more than would satisfy the mortgage, of course the excess would go to the satisfaction of Pepper's debt. If it should sell for less, then Pepper has no interest in it, and I see no reason why she should be compelled to compete with Pepper or anybody else in purchasing the entire property, which is worth four or five times as much as her single piece is worth, in order to make that piece bring its full value on the sale. (134 U. S. 110) GUNTHER et al. v. LIVERPOOL & L. & G. INS. Co. (March 3, 1890.) INSURANCE-CONDITIONS OF POLICY. Insurance policies provided that they should be void if certain inflammable material should be kept or used on the premises without written permission, but excepted "the use of refined coal, kerosene, or other carbon oil for lights, if the same is drawn, and the lamps filled, by daylight." A printed slip bearing the words, "Privileged to use kerosene oil for lights. Lamps to be filled and trimmed by daylight," was attached to each. Held, that the policies were avoided by the drawing of any carbon oil, about dusk, on the premises, near a lighted lantern, though not for the purpose of filling lamps, by any person acting for a lessee of assured, whereby a fire is caused." In error to the circuit court of the United States for the eastern district of New York. C. Bainbridge Smith, for plaintiffs in error. Wm. Allen Butler, for defendant in error. GRAY, J. This was an action brought by a citizen of New York against a British corporation on two policies of fire insurance, dated November 16, 1877, and extended to July 15, 1880,-the one on buildings, and the other on fixtures, furniture, and other personal property in and about the same. Each policy described the principal building as follows: "The two-story frame hotel building, with one-story frame kitchen and two-story frame pavilion adjoining and communicating, situated on Gravesend, bay of Bath, Kings county, Long Island. It is understood that the above property is to be occupied by a family, when not in use as a hotel. Privilege to use gasoline gas,-gasometer, blower, and generator being under ground, about sixty feet from main building, in vault; no heat employed in process. Among the printed conditions of each policy were the following: "If the assured shall keep gunpowder, fire-works, nitro-glycerine, phosphorus, saltpeter, nitrate of soda, petroleum, naphtha, gasoline, benzine, benzole, or benzine varnish, or keep or use camphene, spirit gas, or any burning fluid or chemical oils, without written permission in this policy, then and in every such case this policy shall be void." "Petroleum, rock, earth, coal, kerosene, or carbon oils of any description, whether crude or refined, benzine, benzole, naphtha, camphene, spirit gas, burning fluid, turpentine, gasoline, phosgene, or any other inflammable liquid, are not to be stored, used, kept, or allowed on the above premises, temporarily or permanently, for sale or otherwise, unless with written permission indorsed on this policy, excepting the use of refined coal, kerosene, or other carbon oil for lights, if the same is drawn and the lamps filled by daylight; otherwise, this policy shall be null and void." Attached to and pasted on the face of each policy) at the time of its issue was a printed slip, signed by the defendant's agents, and in these words: "Privileged to use kerosene oil for lights. Lamps to be filled and trimmed by daylight only." And on the margin of the first policy were written and signed by the defendant's agents these words: " 'September 17, 1878. Privileged to keep not exceeding five barrels of oil on said premises." At the first trial a verdict was returned for the plaintiff, which was set aside, and a new trial ordered, by this court. 116 U. S. 113, 6 Sup. Ct. Rep. 306. Afterwards the plaintiff died, and the action was revived in the name of his executors; and the answer was amended by leave of court so as to set up, among other defenses, as a breach of the second condition above quoted, "that kerosene, carbon oil, or other inflammable liquid, so stored, used, kept, or allowed on said premises as aforesaid, was drawn, not by daylight, but at or after dusk or dark, and with a lighted lamp or lantern near, in violation of the express terms of the said condition, and that the fire which de stroyed said premises was caused by such proximity of said lighted lamp; and the defendant further avers that it is advised and believes that the said policies thereby became and were null and void." A second verdict for the plaintiffs was set aside by the circuit court for the reasons stated in its opinion, reported in 34 Fed. Rep. 501. At the third trial the plaintiffs introduced in evidence the policies, and renewal receipts continuing them in force until July 15, 1880, and proved the assured's ownership of the property insured; and the parties agreed that it was destroyed by fire on August 15, 1879, and that the amount of the loss, with interest, was $41,116.64. The defendant proved, by uncontradicted evidence, that a barrel of about 50 gallons of kerosene was bought by Walker, the lessee of the premises, on August 13, 1879, and on the next day put by him in the oilroom under the pavilion, which was a low room, about 12 feet square, with doors 112 |