A mortgage is not such an alienation of property as will defeat a policy of insurance, which provides, that if the prop erty insured is alienated, the policy shall be void. Smith vs. Monmouth Mut. Fire Ins. Co., 50 Me., 96; Rollins vs. Columbia Fire Ins. Co., 5 Foster, 200; Pollard vs. Somerset Mut. Fire Ins. Co., 42 Me., 221; Conover vs. Mut. Ins. Co., 3 Denio, 254; Rice vs. Tower, 4 Gray, 426.

Such a condition is not violated by a lease of the property, which only changes the possession unless the language specially provides therefor. West Branch Ins. Co. vs. Helfen

stein, 40 Penn. St., 289.

Where an insured conveyed half the premises in fee, taking back a lease of the same for five years at a nominal rent, and agreeing to keep and leave the premises in repair; it was held to be an alienation, although the insured would have been bound as lessee to rebuild. Where the insured mortgaged the premises, and assigned the policy to the mortgagee with the consent of the insurer, and afterwards conveyed the premises away; it was held that the policy remained valid as to the mortgagee, and for the amount of the debt; on the ground that the insured could do nothing to affect the rights of the assignee without his consent. In this case it was also held, that payment of an assessment after the property is burned, does not remove the effect of an alienation.

Bankruptcy is said to be an alienation. In Dadman M'f'g Co. vs. Worcester Fire Ins. Co., it appeared that the insured, being in embarrassed circumstances, assigned their property, including the insured premises, to trustees, who were to sell the same and pay the debts secured by the assignment. The deed of assignment contained only a qualified release of the assignors. It was claimed on behalf of the insured, that the deed was fraudulent, and void against creditors by force of the statutes of insolvency of Massachusetts. The court, however, held that the assignors would not be permitted to aver their own fraud in making the deed, to avoid the title made by them under it and allow them to fall back upon their former title. It was held, that the conveyance was an alienation of the insured property, that the assured could not

avoid their conveyance and fall back upon their original title as proposed, and that the assignment and notice thereof must be made and given before loss, and would be of no avail when made and given afterward, though within the sixty days limited in the policy. 11 Met., 429.

In the case of Lane vs. Maine Mutual Fire Ins. Co., above referred to, the Court in giving judgment say, "As to the goods, we are clear that the policy was intended to cover, and did cover, whatever goods the plaintiff might have in his store, at any time during the continuance of the risk, not beyond the amount actually insured. A construction limiting the policy to the goods actually in the store at the time the insurance was effected would defeat the very object of the assured, and so it must have been understood by the insurer. The plaintiff's business was trade, the vending of goods from his store. According to the construction put upon the policy by the company, the plaintiff has no security except upon the goods actually in the store when the policy was issued, and when those were disposed of, their liability was at an end. We cannot listen for a moment to such a suggestion. policy of insurance, being a contract of indemnity, must receive such a construction of the words employed in it as to make the protection it affords co-extensive, if possible, with the risk of the assured."

A

The court evidently considered the risk a continuing one, to the amount specified, upon such goods as the assured might have in the store within the term limited in the policy, and not confined to such as were there at the time of assuming the risk. This is the general doctrine held by the courts and acted upon by insurers in like cases.

Breach of the condition by a mortgagor in no respect changes the nature of the estate in the respective parties, but the mortgagor is still considered the owner against all but the mortgagee, may sell and convey the fee, subject to the mortgage, may lease the land if in possession, and in every respect deal with it as his own. It has, therefore, been properly held, that such breach of the condition supervening upon a mortgage of the property does not constitute such aliena

tion, transfer or change of title, as will defeat a policy. It has been held, also, that an assignment as collateral security was not a sale, transfer or change of title, within the meaning of such a condition. Ayers vs. Hartford Ins. Co., 21 Iowa, 198.

The case, Hoffman vs. Ætna Fire Ins. Co., above referred to, is an authority that sales of partners or tenants in common, as between themselves, are not interdicted by such a condition; but in Buckley vs. Garrett, 47 Penn. State, 204, it was held, that a transfer by one tenant in common to his co-tenant, or from one partner to another, would avoid a policy under such a provision.

Three partners effected insurance, and before a loss one of them sold his interest to the other two without notice to or consent of the insurers. It was held by the Supreme Court of Illinois, that this was a violation of the condition that, "in case of any transfer or change of title in the property insured, or of any undivided interest therein, such insurance shall be void and cease," and that the entire policy would thereby be rendered void. Dix vs. Mercantile Ins. Co., 22 Ill., 272. It will be noticed, that the difference between this decision and the two previously cited may be well justified by the special clause in italics.

Where the policy provided, that "in case of any sale, transfer or change of title, in the property insured by this company, such insurance shall be void :" to prevent attachment of the goods insured, the assured represented that she had sold them to one C., who was also a creditor; no bill of sale was given, but a mere agreement between the assured and C., that if any of her creditors came she was to tell them that the goods belonged to C. It was held, that this was not an alienation that avoided the policy; but to constitute a breach of the condition there must have been an actual sale or transfer of the property, valid as between the parties. Orrell vs. Hampden Fire Ins. Co., 13 Gray, 431.

A sale by one partner to another was held a violation of a condition against alienation by sale or otherwise, in Finley vs. Lycoming Ins. Co., 30 Penn. St., 311. See also to same point: Keeler vs. Majara Ins. Co., 16 Wis., 523; Hartford

F. Ins. Co., vs. Ross, 23 Ind., 179; 3 Denio, 301, and 18 Mo., 128.

A policy was issued on a stock of goods, which after the insurance was effected were sold on execution and bought in by the plaintiff, to whom the policy was assigned with the assent of the company, without special disclosure of plaintiff's interest in the insured property. It was held, 1st, that the sale of goods did not avoid but merely suspended the policy, which was still a valid and subsisting contract in the hands of the original assured, and would reattach to the same kind of goods afterward purchased and put in the same place, and was, therefore, valid in the hands of an assignee with consent of the company; and 2d, that application to the insurer for consent to the assignment of the policy was notice that the applicant had acquired, or was about to acquire, some interest in the subject of insurance. Hooper vs. Hudson River Ins. Co., 17 N. Y., 424.

The effect on an assignment in insolvency was considered in the case of Young vs. Eagle Fire Ins. Co., 14 Gray, 150. See also, Adams vs. Rockingham Mutual Insurance Co., 29 Me., 292.

Twentieth. "Or if this policy shall be assigned, either before or after a loss, without the consent of the company endorsed hereon, this policy shall be void."

It was very early held, that policies against loss by fire were not in their nature assignable, and though the mercantile world, especially in England, has not been entirely satisfied with decisions against their transferability, the question must be regarded as entirely settled, and the decisions seem to rest upon sound principles.

In this respect, a fire policy differs from a marine insurance, which contract may be transferred by an assignment of the policy accompanied with conveyance of the interest insured, though without the assent of the underwriter.

In marine policies, the contract attaches more directly to the property insured, rather than the owner of it; while in fire policies the contract is personal, and does not run with the property insured.

It is suggested in the American Leading Cases, that it is difficult to see why the personal nature of a contract against fire, and its incapacity of being attached to and passing with the property, should render the consent of the insurer necessary to a valid assignment of a fire policy, while, as to a marine policy, no such assent is necessary; but one reason why a fire policy should not be assignable without such consent, or except under other specified conditions, is the reliance which is commonly placed upon the character of the assured. The moral hazard, which has been referred to, depends greatly upon the character of the person to whom the policy is issued. Property on land may ordinarily be destroyed without personal physical risk to the incendiary, while property on the sea enjoys a certain degree of protection against intentional burning, by the personal danger which one burning property so situated would ordinarily incur.

Among the earliest cases, in which questions were discussed arising out of an attempted assignment of a policy of insurance, are those of Lynch vs. Dalzell, 4 Brown, Parl. Cas., 431; Saddlers' Co. vs. Babcock, 2 Atkyns, 554; 1 Campb., 237; Columbian Ins. Co. vs. Lawrence, 2 Pet., 25.

In certain cases, where it appeared that after the assignment of a policy, which was relied on as having avoided the contract, an assessment had been made on the plaintiff under the premium note signed by him; this fact, and the subsequent payment of the assessment, were relied upon as amounting to a waiver of the forfeiture. It was held, however, by the court, that as the contract was absolutely avoided by the breach of the condition, it could not be revived by the subsequent acts of either or both of the parties, without express renewal. Carpenter vs. Providence Washington Ins. Co., 16 Pet., 495; Carroll vs. Boston Marine Ins. Co., 8 Mass., 515; Mowry vs. Todd, 12 Mass., 281; Bodle vs. Chenango County Mutual Ins. Co., 2 Comst., 53; Wilson vs. Hill, 3 Met., 66.

Such defence, as might have been made against the assignor of a policy, can usually be made with equal effect against the assignee.

The condition, that the interest of the assured in the policy