Welch v. British American Etc. Co.

SHAW, J.

This is an action by a creditor whose debt was secured by a deed of trust of the property insured, to recover the sum of two thousand dollars upon a fire-insurance policy issued by the defendant to one George IT. Barrett, the maker of the deed of trust. The trust-deed was executed after the issuance of the policy, and thereupon a slip was attached to the policy making the loss, if any, payable to the plaintiff, as his interest should appear. The sole proposi

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tion presented for decision is the question whether or not, under the terms of the policy, and the facts stated in the complaint, a change of ownership of the property insured, subsequent to.the issuance of the policy and before the loss, without the written consent of the defendant thereto indorsed on the policy, made the policy void as against the plaintiff.

The policy contained a paragraph declaring that it should be void upon the happening of either one of a large number of conditions, among which was that it should be void if, without an agreement by the company indorsed on or added to the policy, “any change, other than by the death of an insured, take place in the interest, title, or possession'of the subject of insurance, whether by legal process or judgment, or voluntary act of the insured, .or otherwise.” Following this paragraph, after several other intervening paragraphs relating to other matters, the following clause, called for convenience, the “mortgage clause,” was inserted: “If, with the consent of this company, an interest under this policy shall exist in favor of a mortgagee or of any person or corporation having an interest in the subject of insurance other than the interest of the insured as described herein, the conditions hereinbefore contained shall apply in the maimer expressed in such provisions and conditions of insurance relating to such interest as shall be written upon, attached, or appended hereto.” At the close of the policy appeared 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 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.” It appeared from the complaint that after the policy was issued and the deed of trust executed, and before the loss occurred, the title to the property had been transferred from Barrett to one J. F. Sanborn, and that no agreement that it should be so transferred was indorsed on the policy or executed by the defendant. Upon this it is claimed that the policy was avoided by the transfer without consent of the company.