68 Mass. 216 | Mass. | 1854
A clear understanding of the contract, which subsisted between the parties to this action at the time of the loss by fire, will lead to a ready solution of the questions raised by the agreed statement of facts.
The plaintiffs do not stand, as the argument for the defendants seems to assume, in the position of mere assignees of a policy, issued in the name of another person, and intended to cover only his interest in the property insured. Such would have been the relation of the parties, if the policy, originally •issued in the name of Worcester, had been assigned to the
It follows, as a necessary consequence of this view of the contract between the parties and their relation to each other, that no act of the person in whose name the policy was first issued, done subsequent to the assignment and its approval by the defendants, or of any other party having an interest in the property insured, acting without the concurrence of the plaintiffs, can in any way affect or impair the rights of the plaintiffs under the policy. It is the act of the party insured, in violation of the conditions and stipulations contained in the policy, which alone can avoid the contract. It would be an anomaly, if a party were made liable to lose the benefit of a contract made with himself, and for which he had paid a full and adequate consideration, by the acts of strangers or those over whom he had no control. Tillou v. Kingston Mutual Ins. Co. 7 Barb. 570, and 1 Seld. 405.
The result is, that the alienation of the right in equity by Worcester, having been made without the concurrence of the plaintiffs, however it might affect his rights under the original policy, does not avoid the claim of the plaintiffs as mortgagees for an indemnity under their distinct and independent contract of insurance with the defendants.
For the same reason, the subsequent insurance on the property does not invalidate the plaintiffs’ claim. It was procured by a third party, without the knowledge óf the plaintiffs, who have never in any way sanctioned or adopted it.
The fact, that the injury caused by fire to the property insured had been repaired by the owner of the right of redemption, before the commencement of this action, is wholly immaterial. The plaintiffs had an insurable interest in the property; the lefendants agreed to insure it against a loss by fire; and a loss