nor a conditional sale, where the condition is precedent and not yet performed; (h) nor a mere agreement between the owner of property insured and another person, to represent to the creditors of the owner in order to prevent attachments, that it had been sold to such other person. (i) But it has been held that a policy on an undivided half of a building was avoided by a partition made by the court between the insured and his cotenant. (ii) l And that a sale and release of the interest of one partner in the business and property, does not avoid the policy. (ij) 2 A transfer of a part of the property does not avoid the policy as to the part not transferred. (ik) 3

The effect of bankruptcy, or of voluntary assignment to assignees in trust, may not be certain. It may be an inference from the weight of authority, that in either case this is an alienation. Policies sometimes provide for such circumstances. In the absence of such provisions, we should say on general princi-ples *that where property insured against fire, is taken into the possession of the law, for the benefit of creditors, the insurance would remain valid for their benefit, until the property was sold by the assignees. (j) 4 But if the insured on his own application is declared an insolvent or a bankrupt, this may be an alienation. (k) 5 So if there is a voluntary assignment to assignees in trust. (l) 6

Co. 11 Barb. 624; Perry Co. Ins. Co. v. Stewart, 19 Fenn. State, 45.

(h) Tittemore v. Vt. Ins. Co. 20 Vt. 646.

(i) Orrell v. Hampden Ins. Co. 13 Gray, 481. The policy provided that the insurance should be void "in case of any sale, transfer, or change of title."

(ii) Barnes v. Union Ins. Co. 51 Me. 110.

(ij) Hoffman v. AEtna. Ins. Co. 1 Rob. 501.

(ik) Manley v. Ins. Co. 1 Lane. 20.

(j) See Bragg v. New England Ins. Co. 5 Foster, 208.

(k) Adams v. Rockingham Ins. Co. 29 Maine, 292; Young v. Eagle Ins. Co. 14 Gray, 150.

(l) Dadmun Manuf. Co. v. Worcester Ins. Co. 11 Met. 429, 484.

1 See Plath v. Minn. Farmers' Ins. Co. 23 Minn. 479.

2 Pierce v. Nashua Ins. Co. 50 N. H. 297; West v. Citizens' Ins. Co. 27 Ohio St. 1; Cowan v. Iowa Ins. Co 40 la. 551; Burnett v. Eufaula Ins. Co. 46 Ala. 11.

3 Quarrier v. Ins. Co. 10 W. Va. 507. So where the insured exchanges one horse for another. Mills v. Farmers' Ins. Co. 37 la. 400.

4 An assignment in bankruptcy by a mortgagor of chattels, the legal title to which is in the mortgagee, will not avoid a policy, providing that a change in title by "legal process, judicial decree, or voluntary transfer or conveyance," would avoid it, loss, if any, payable to mortgagees. Appleton Iron Co. v. Brit. Am. Ass. Co. 46 Wis. 23.

5 A condition in a policy of fire insurance forfeiting it in case the property insured becomes incumbered in any way without the consent of the company written thereon refers to incumbrances created by the act of the insured, and not to those created by judgment or otherwise in invitum by operation of law. Baley v. Homestead Fire Ins. Co. 80 N. Y. 21. See Starkweather v. Cleveland Ins. Co. 5 Bennett's Cas 328.

6 See Hazard v. Franklin Ins. Co 7 R. I. 429.

The death of the insured is no alienation of the property insured, within the meaning or the prohibition of alienation. (m) 1

Policies of insurance are certainly not negotiable. (n) They may be however, and often are, assigned with the consent of the insurers. Generally the assignor of a chose in action cannot prejudice the rights of the assignee after the debtor has assented to the assignment. (o) But where the owner of property mortgaged, effects insurance in his own name, "loss payable to the mortgagee," or has such a clause afterwards indorsed on the policy with the assent of the insurers, the insurance is still upon the interest of the mortgagor, and he does not cease to be a party to the original contract with the insurers; and any act of his which would otherwise render the policy void, will have this effect, although the policy is in the hands of the mortgagee. (p) 2 But if the insurers, at the time of their assent to the transfer of the policy, impose any further obligation on the transferee, this is evidence of a new contract with him, and then the acts of the mortgagor cannot affect his rights as mortgagee. (q)

*In practice it is usual, and always proper, that due notice of transfers should be given to the insurers, and their consent obtained, and duly indorsed or approved, as their roles may require. But notice and consent may be entirely sufficient, although they do not precisely conform to the formal requirements.

An agent of an insurance company, to receive premiums and

(m) Burbank 9. Bockingham Ins. Co. 4 Foster, 550.

(n) Lynch v. Dalsell, 4 Brown, P. C. 431; Carroll 9. Boston Ins. Co. 8 Mass. 515; Smith 9. Saratoga Co. Ins. Co. 3 Hill, 506; Bodle 9. Chenango Co. Ins. Co. 2 Comst. 53; Carpenter v. Providence Ins. Co. 16 Pet 502, 503; Sherman v. Pair, 2 Speers, 647; Nevins v. Bockingham Ins. Co. 5 Poster, 22.

(o) Hackett v. Martin, 8 Greenl. 77; Hatch 9. Dennis, 1 Fairf. 244; Matthews 9. Houghton, id. 420; Freer 9. Evertson, 20 Johns. 142.

(p) Hale v. Mechanics Ins. Co. 6 Gray, 169; Bowditch Ins. Co. 9. Winslow, 8 Gray, 38; Loring 9. Mannf. Ins. Co. id. 28; Edes 9. Hamilton Ins. Co. 8 Allen, applications for insurance, and transmit policies, has no authority to waive notice of an assignment of a policy. (r) 1

362; State Ins. Co. 9. Roberts, 7 Am. Law Beg. 229; Grosvenor 9. Atlantic Ins. Co. 17 N. Y. 391; Bidwell v. Northwestern Ins. Co. 19 N. Y. 179. See Buffalo Steam-Engine Works 9. Sun Ins. Co. 17 N. Y. 401; Pollard 9. Somerset Ins. Co. 42 Maine, 221.

(q) Foster v. Equitable Ins. Co. 2 Gray, 216. In Edes v. Hamilton Ins. Co. 3 Allen, 362, Bigelow, C. J., speaking of the above case, said: "The decision in that case, although fully warranted by the peculiar facts which were there shown to exist, was nevertheless going as far as the rules of law will permit, in order to sustain a claim for loss under a policy which has bean assigned by the original assured."

1 See also Sherwood 9. Agricultural Ins. Co. 78 N. Y. 447. 2 Franklin Savings Institution 9. Central Ins. Co. 119 Mass. 240. See State Ins. Co v. Maackens, 9 Vroom, 564; Continental Ins. Co. v. Hulman, 92 Ill. 145.

Policies against fire sometimes contain a provision that the policy shall be void if the building be used for an unlawful purpose. Such a policy is held to be avoided by a sale of ardent spirits therein without a license, where that sale is prohibited by law; and this when the violation of law was made without the knowledge of the policy-holder. (rr) 2 So a policy on intoxicating liquors is void, if they are kept for sale and that sale is illegal. (rs)