It is quite certain, that policies against fire are contracts only between the insured and the insurer, and do not pass to any other party without the consent of the insurers. (x) If, therefore, before the loss occurs, the insured alienates the whole of his interest in the property, he loses nothing by the fire, and has no claim for any loss. (y) And if he alienates only a part, his claim is in proportion to the interest he retains. (z)

But when a loss occurs, it vests in the insured a right to indemnity. This right is assignable, and an assignee for value may enforce his claim against the insurers, (a) although it may be necessary to bring the action in the name of the insured. But a mere assignment or transfer of the premises after a loss, does not of itself transfer the right of indemnity for the previous loss, unless the contract shows this to have been the intention of the parties.

Our policies against fire very commonly provide expressly, that an assignment either of the property or the policy shall avoid the policy. If this prohibition covers in its terms only a transfer of

(w) Chandler v. Worcester Ins. Co. 3 Cush. 328. In Johnson v. Berkshire Ins. Co. 4 Allen, 338, it was found that the fire was caused by the act of the insured; that there had been a want of ordinary care, judgment, and discretion on his part, but that he had not been guilty of recklessness and wilful misconduct. Held, that the insured was entitled to recover.

(x) Tate v. Citizens Ins. Co. 13 Gray, 70; Granger v. Howard Ins. Co. 6 Wend. 200; Lane v. Maine Ins. Co. 3 Fairf. 44;

Morrison v Tennessee Ins. Co. 18 Misso. 262; Rollins v. Columbian Ins. Co. 6 Foster, 204. This doctrine was early held in England. Lynch v. Dalzell, 4 Brown, P. C. 431 (1720); Sadlers Co. v. Badcock, 2 Atk. 554 (1743).

(y) Carroll v. Boston Ins. Co. 8 Mass. 515; Wilson v. Hill, 8 Met. 66.

(z) AEtna Ins. Co. v. Tyler, 16 Wend. 385,401.

(a) Wilson v. Hill, 3 Met 69; Brichta v. N. Y. Ins. Co. 2 Hall, 372. But see Lynch v. Dalzell, 4 Brown, P. C. 431 the interest of the insured, it would seem that this prohibition is not extended by its terms to the contract of insurance. (b) 1

* Some recent policies contain a provision prohibiting a transfer of his claim by the insured after a loss occurs; and then make such a transfer an avoidance of the policy. It has been held, that the policy of the law makes such a restriction upon the power of transferring a vested right itself void. (c) 2 But it has also been held, that if the parties choose to make such a bargain they are bound by it. (d)

An alienation of the property, to have the effect of discharging the insurers, must amount to an absolute conveyance of the title of the insured thereto. (e) 3 Hence, a mortgage of real estate has no such effect, until entry for breach and foreclosure; (f) 4 or a sale of the equity of redemption; (ff) 5 nor a contract to convey; (g)

(b) Carpenter v. Providence Ins. Co. 16 Pet. 502. Where a policy issued by a mutual fire insurance company contained this clause: "The interest of the assured in this policy is not assignable without the consent of said company in writing; and in case of any transfer or termination of the interest of the assured, either by sale or otherwise, without such consent, this policy shall thenceforth be void, and of no effect," it was held, that this clause did not merely nullify the assignment of the policy, when made without consent, but operated on the policy. Smith v. Saratoga Co. Ins. Co. 1 Hill, 497, 8 id. 60S. As to the meaning and effect of the word "assigns," see an interesting case, Holbrook v. American Ins. Co. 1 Curtis, C. C. 198.

(c) Goit v. National Ins. Co. 25 Barb. 189. See also Courtney v. New York Ins. Co. 28 Barb. 116.

(d) Dey v. Poughkeepsie Ins. Co. 23 Barb. 623.

(e) Masters v. Madison Co. Ins. Co. 11 Barb. 624; Van Deusen v. Charter-Oak

Ins. Co. 1 Rob. 66; Ayres v. Home Ins. Co. 21 la. 186.

(f) Conover v. Mut. Ins. Co. 1 Comst. 290, 3 Denio, 254; Jackson v. Mass. Ins. Co. 23 Pick. 418. Nor a mortgage of personal property without a transfer of possession to the mortgagee. Rice v. Tower, 1 Gray, 426. See also Holbrook v. Am. Ins. Co. 1 Gurtis. C. C. 198. Nor a levy on execution. Clark v. New Eng. Ins. Co. 6 Cush. 342; Rice v. Tower, 1 Gray, 426. Nor a sale of the equity of redemption, so long as the party has the right to redeem. Strong v. Manufacturers Ins. Co. 10 Pick. 40. But a mortgage is considered a material alteration in the ownership of the property insured. Edmands v. Mutual Ins. Co. 1 Allen, 311. And sometimes alienation by mortgage is directly prohibited. Edes v. Hamilton Ins. Co. 3 Allen, 962. See Shepherd v. Union Ins. Co. 38 N. H. 232.

(ff) Lawrence v. Holyoke Ins. Co. 1l Allen, 387.

(g) Trumbull v. Portage Co. Ins. Co. 12 Ohio, 805; Masters v. Madison Co. Ins.

1 Ferree v. Oxford Ins. Co. 67 Penn. St. 373.

2 Alkan v. New Hampshire Ins. Co. 63 Wis. 136.

3 A conveyance in fee with mortgage back will be an alienation, Savage v. Howard Ins. Co. 62 N. Y. 502; Home Ins. Co. v. Hauslein, 60 Ill. 521; but the deed must be delivered, Farmers' Ins. Co. v. Graybill, 74 Penn. St. 17; Manhattan Ins. Co. v. Stein, 5 Bush, 652; so is a mortgage, Atherton v. Phoenix Ins. Co. 109 Mass. 32; but not a sale of the equity of redemption, so long as the seller can redeem, Loy v. Ins. Co. 24 Minn. 315. A conveyance by a husband and wife to a third person, and by him back to the wife to effectuate the provisions of a will, was held an alienation in Langdon v. Minn. Ins. Co. 22 Minn. 193.

4 Foreclosure, however, is complete, although proceedings are pending to correct an error. McKissick v. Millowners' Ins. Co. 50 la. 116. See Commercial Union Ass. Co. v. Scammon, 102 Ill. 46; Bishop v. Clay Ins. Co. 45 Conn. 430.

5 Contra, by statute, if the owner of the equity takes an unrecorded bond for a reconveyance. Foote v. Hartford Ins. Co. 119 Mass. 259.