delivered the opinion of the court.

This suit was begun in the circuit court of Choctaw county to recover the value of household and kitchen furniture destroyed by fire. Appellant had insured the property against loss by fire. Appellant pleaded a violation of the mortgage clause in the policy, which provided that:

“This entire policy, unless otherwise provided by agreement indorsed hereon, or added hereto, shall be void if . . . the subject of the insurance be personal property and be or become incumbered by mortgage.”

This clause of the policy was pleaded in bar of the recovery. Appellee, plaintiff below, replied that he informed the agent of the company that he intended to give a deed of trust on the property to one Sides, and the agent waived the provision of the policy and agreed that plaintiff might execute the deed of trust.

At the trial plaintiff admitted that the agent had not agreed that he might execute the deed of trust, but he proved by Sides that he (Sides) went to see the agent about the matter, but the agent refused to put the mortgage clause on the policy. Mr. .Sides’ testimony at the trial may be summed up by the following extract from the record:

“Q. You did get it in your mind to go to Mr. Prewitt for the purpose of getting a mortgage clause? A. Yes, sir. Q. Then you are thoroughly acquainted with the legal effect of a mortgage clause? A. I doubt as I am. I thought that was a protection. Q. Don’t you know if Mr. Prewitt would consent to put a mortgage clause on this policy he would consent thereby to insure your interest in the property if it should burn? A. Yes, sir. Q. And that was your purpose in getting it? A. Yes, sir. Q. And that was the only purpose you wanted it for? A. Yes, sir. Q. Mr. Prewitt declined to do that? A. Yes, sir. Q. You say he told you whatever you and Bailey agreed on was all right? A. Yes, sir. Q. You *736Bad already taken tlie deed of trust before you ever went to Mr. Prewitt about it? A. Yes, sir.”

It will be seen tBat Mr. Sides went to tbe agent to insure his interest in the property, and the agent refused to do so. It is claimed that, when the agent said that “anything you and Bailey do will be all right,” that meant a waiver of the mortgage clause.

Mr. Sides went to the agent to get an indorsement on the policy agreeing that the giving of the deed of trust would not render the policy void. The agent refused to make the indorsement, and Mr. Sides did not get what Be wanted. But it is contended that the agent said that anything Sides, and Bailey did would be all right, and this was a waiver of this provision of the policy. In other words, the agent refused to waive the provisions -of the policy, by refusing to do the very thing necessary to constitute a waiver. Sides was endeavoring to validate the deed of trust by an indorsement on the policy, and the agent refused to make the indorsement, thereby declining to validate the deed of trust and waive the provisions of the policy.

Reversed and remanded.