tion of the time for redemption, notwithstanding a verbal promise of the mortgagee to sell the land back to the mortgagor. The court says: "The

word 'sold' stands for the voluntary transfer of all right or title to, and of all interest in, the land and buildings thereon, by Stannard to another; also, for the wresting from him, by due process of law, of all right or title to, and of all interest in, the same, and the vesting thereof absolutely in another; also, for his permitting a decree against him for strict foreclosure of his title thereto to become absolute in favor of a mortgagee by his omission to redeem."

So, under a provision declaring the policy void if the property insured be sold or transferred, or any change take place in the title or possession, whether by legal process or judicial decree or voluntary transfer or conveyance, a decree of foreclosure of a mortgage issued before the policy, becoming absolute by a failure to redeem, forfeits the policy (Bishop v. Clay F. & M. Ins. Co. (1878) 45 Conn. 430; Brunswick Sav. Inst. v. Commercial Union Ins. Co. (1878) 68 Me. 313, 28 Am. Rep. 56), although it is not forfeited by the appointment of a receiver pendente lite in a proceeding for dissolution of the partnership (Keeney v. Home Ins. Co. (1877) 71 N. Y. 396, 27 Am. Rep. 60), or by the sale under execution where time for redemption has not expired (Hammel v. Queen's Ins. Co. (Wis.) supra).

Maine.

Pollard v. Somerset Mut. F. Ins. Co. (1856) 42 Me. 221.

Massachusetts.-Jackson v. Massachusetts Mut. F. Ins. Co. (1840) 23 Pick. 418, 34 Am. Dec. 69; Bryan v. Traders' Ins. Co. (1888) 145 Mass. 389, 14 N. E. 454.

New Hampshire.-Rollins v. Columbian Mut. F. Ins. Co. (1852) 25 N. H. 200.

New York.-Conover v. Mutual Ins. Co. (1846) 3 Denio, 254, affirmed in (1848) 1 N. Y. 290 (mortgage not an alienation by sale or otherwise); Van Deusen v. Charter Oak F. & M. Ins. Co. (1863) 1 Robt. 55 (not a sale, alienation, or transfer of title).

Vermont. Titemore v. Vermont Mut. F. Ins. Co. (1848) 20 Vt. 546.

See also Rice v. Tower (1854) 1 Gray (Mass.) 426; Nussbaum v. Northern Ins. Co. (Fed.) supra; Virginia F. & M. Ins. Co. v. Feagin Bros. (1879) 62 Ga. 515; Ayres v. Hartford F. Ins. Co. (1864) 17 Iowa, 176, 85 Am. Dec. 553; Judge v. Connecticut F. Ins. Co. (1882) 132 Mass. 521; Loy v. Home Ins. Co. (1877) 24 Minn. 315, 31 Am. Rep. 346; Byers v. Farmers' Ins. Co. (1880) 35 Ohio St. 608, 35 Am. Rep. 623.

In Judge v. Connecticut F. Ins. Co. (1882) 132 Mass. 521, it was said that mortgages are not “sales, transfers, or conveyances," in the usual acceptation of those words; they are merely security for the payment of money.

And so, the conveyance of an insured building by a deed absolute in form and duly recorded is not a violation of a provision forbidding insured property to be sold without the consent of the insurer, where, at the same time and as a part of the same transaction, the vendee executed a bond, which was not recorded as required by law, that she would reconvey the property upon certain conditions, since this transaction was to be treated as a mortgage as regards the insurer, notwithstanding a statute declaring that, as to third parties, a deed absolute in form is to be treated as an absolute conveyance when the instrument of defeasance is not recorded. Bryan v. Traders' Ins. Co. (Mass.) supra, 389, the court being of the

ton & E. Mut. Ins. Co. (1853) 16 Barb. (N. Y.) 254.

So, the sale of mortgaged property for breach of a condition under a power to sell the property for such a breach, and to convey to the purchaser an absolute title in fee such that the mortgagor would forever be barred "from all rights and interest in the granted premises, whether at law or in equity," contained in the mortgage to the mortgagee, is within the terms of the clause in the policy avoiding it if the property shall be sold without the consent of the insurer, although the policy is made payable to the mortgagee as his interest may appear. Boston Co-op. Bank v. American Cent. Ins. Co. (1909) 201 Mass. 350, 23 L.R.A. (N.S.) 1147, 87 N. E. 594.

And if the insured executes a deed purporting to convey an absolute estate in the property insured, and fails to record the instrument of defeasance as required by a statute which provides that the deed shall not be defeated unless the instrument of defeasance is recorded, there has been such "alienation" of the property as will avoid the policy. Tomlinson v. Monmouth Mut. F. Ins. Co. (1859) 47 Me. 232.

In M'Culloch v. Indiana Mut. F. Ins. Co. (1846) 8 Blackf. (Ind.) 50, it was held that a mortgage was an alienation of property within the meaning of a provision in a policy declaring it void should the insured property be alienated by sale or otherwise, for, "if it be viewed in any other light, one of two consequences must follow -either every insured person has it in his power to destroy the value of the company's lien on the insured property by mortgaging it for as much. as it is worth, while the liability of the company will continue on the policy, or a mortgagee must be subjected to the operation of a secret lien, to discover which is beyond his power."

Although the policy will not be avoided by a fraudulent, illegal, and voidable sale under a power in the mortgage, which sale the insured, by bringing a bill in equity, could have annulled. Scammon v. Commercial

Union Ins. Co. (1887) 20 Ill. App. 500, reversed, for failure of appellate court to find facts as to all issues, in (1888) 123 Ill. 601, 14 N. E. 666; Commercial Union Assur. Co. v. Scammon (1888) 126 Ill. 365, 9 Am. St. Rep. 607, 18 N. E. 562; Niagara F. Ins. Co. v. Scammon (1891) 144 Ill. 490, 19 L.R.A. 114, 28 N. E. 919, 32 N. E. 914.

And in Jackson v. Massachusetts Mut. F. Ins. Co. (1840) 23 Pick. (Mass.) 418, 34 Am. Dec. 69, the court restricted the rule that a mortgage was not an alienation of property, within a provision forfeiting an insurance policy should the property be alienated, to the case of a mortgagor remaining in possession, and where there had been no entry for foreclosure.

IX. Bankruptcy; assignment for benefit of creditors.

Where the property owner filed a voluntary petition in bankruptcy, and was adjudicated a bankrupt and a receiver appointed, and between that time and the time of the appointment of a trustee in bankruptcy, the property was destroyed, the court in Fuller v. New York F. Ins. Co. (1903) 184 Mass. 12, 67 N. E. 879, held that, since the property did not vest in the trustee at the time of the adjudication in bankruptcy, the provisions of the Massachusetts standard policy had not been violated so as to enable the insurer to declare a forfeiture.

So, a deed conveying goods to assignees in trust for creditors will not forfeit a policy prohibiting "any transfer of the interest of the insured, by sale or otherwise," without the assent of the insurer, where the original owner retained actual possession of the goods. Phoenix Ins. Co. v. Lawrence (1862) 4 Met. (Ky.) 9, 81 Am. Dec. 521.

But a deed of assignment transferring all property of the insured, including property covered by a policy, to the assignee, is within a provision declaring the policy void if the property "shall in any way be alienated." Young v. Eagle F. Ins. Co. (1859) 14 Gray (Mass.) 150, 74 Am. Dec. 673. And so a conveyance in

trust to sell the property and pay the debts of the insurer violates such a provision, notwithstanding that the property conveyed was more than sufficient to cover the debt. Dadmun Mfg. Co. v. Worcester Mut. F. Ins. Co. (1846) 11 Met. (Mass.) 429.

And a decree of bankruptcy absolutely devesting the bankrupt of all his property, investing it in his assignee, constitutes an alienation of property within the charter provision of a mutual insurance company, making policies void whenever buildings insured shall be alienated by sale or otherwise. Adams v. Rockingham Mut. F. Ins. Co. (1849) 29 Me. 292. The court says: "The mode of alienation is immaterial. Whatever

act of the assured operates to devest them of all interest in the property upon which the insurance was effected would be such an alienation as is contemplated in the charter."

And a policy of fire insurance conditioned to be void should any part of the realty be sold is forfeited by a deed of assignment for the benefit of creditors, reciting that the grantor "has and does hereby sell, grant, and convey, transfer, set over, and assign," for, even though there was not a sale out and out for value, there was certainly a transfer. Ohio Farmers' Ins. Co. v. Waters (1901) 65 Ohio St. 157, 61 N. E. 711.

X. Lease.

In an early case it was held that a parol lease of a store and stock of goods, constituting the lessee, at the most, only a tenant at will, was not an "alienation" of property within the intent and meaning of the charter of a mutual fire insurance company, rendering a policy issued by it void when the property insured "shall be alienated by sale or otherwise." Lane v. Maine Mut. F. Ins. Co. (1835) 12 Me. 44, 28 Am. Dec. 150.

XI. Miscellaneous.

In International Wood Co. v. National Assur. Co. (1904) 99 Me. 415, 105 Am. St. Rep. 288, 59 Atl. 544, 2 Ann. Cas. 356, the court held that since, in order to avoid a policy of

insurance under a clause forfeiting the policy if the property should be sold without the consent of the insurer, the sale thereof must be such as would pass title in the property insured, there was no forfeiture by a judicial sale of the property, confirmed by a decree of the court upon the receiver filing his report of the sale, which was afterwards annulled on a finding, as a matter of fact, that the sale had not been completed and that the title had not vested in the vendee.

And although the insured has sold property, a policy thereon will not be forfeited by reason of a provision forbidding a transfer of the interest of the assured, by sale or otherwise, where, before the loss, the property had reverted back to the insured's possession in consequence of the vendee's failure to pay for the same. Power v. Ocean Ins. Co. (1841) 19 La. 28, 36 Am. Dec. 665.

It has been held that the conveyance of property by a husband to his wife, through a third party, will avoid a policy of insurance thereon, issued to the husband and wife jointly while the exclusive title to the property was in the husband, and which provided that it should become null and void in case of the insured property being sold or conveyed, or if the interest of the parties be changed in any manner. Walton v. Agricultural Ins. Co. (1889) 116 N. Y. 317, 5 L.R.A. 677, 22 N. E. 443 (Bradley, J., dissenting).

But where at the time an insurance policy was issued the property on which the building insured was situated had been sold for taxes, but conveyed by the purchaser to the insured's wife, the insured paying the consideration, the court in Kyte v. Commercial Union Assur. Co. (1887) 144 Mass. 43, 10 N. E. 518, held that a transaction whereby the wife conveyed her tax title interest, through a third person, back to the plaintiff, was not a sale within a provision in the policy declaring it void if, without the assent of the company, the property should be sold, for, since the third party was merely a conduit

through whom the title was to be passed to the husband, to hold that such transaction was a sale would attribute meaning to the provision that it was not intended to bear.

And where one insured has interest as mortgagee in premises under a policy declaring a forfeiture in case. the premises were sold or conveyed, a release to the mortgagee by the mortgagor of his equity of redemption in the premises is not a violation of the forfeiture provision, since that obviously refers to a sale or conveyance by the assured, determining his interest, and not a sale or conveyance to him increasing his interest. Heaton v. Manhattan F. Ins. Co. (1863) 7 R. I. 502. See also Bailey v. American Cent. Ins. Co. (1882) 4 McCrary, 221, 13 Fed. 250, holding a provision in a policy issued to a mortgagee for a forfeiture in the event the property was sold, or any change took place in title or possession, was not violated by a sale of the property to the mortgagee on foreclosure of his mortgage.

And where the husband of a woman owning a life interest in an undivided one-third part of a tract of land erected a house upon the land, which he insured under a policy forbidding the property to be sold or alienated without the assent of the insurer, and thereafter the wife conveyed her life interest to the remainderman, and on the same day the husband gave a quitclaim deed of the remaining two thirds to the remainderman, who mortgaged it back to the husband to secure a debt, the court in Abbott v. Hampden Mut. F. Ins. Co. (1849) 30 Me. 414, held that there had been an alienation of the property within the provision of the policy rendering it void for that reason.

And so, under a policy of fire insurance declaring a forfeiture should the property on which the buildings insured were located be alienated by sale or otherwise, a sale of the premises under proceedings in the probate

court is not such an alienation as will avoid the policy, where the property is destroyed before a confirmation of the sale. Farmers' Mut. Ins. Co. v. Graybill (1873) 74 Pa. 17. Nor is a representation of a sale in order to prevent attachment by creditors a sale. Orrell v. Hampden F. Ins. Co. (1859) 13 Gray (Mass.) 431.

A deed of insured premises reserving a life estate in the house is not such a sale of the house as will defeat insurance on the grantor's life interest under a clause in the policy making the insurance void "if the said property be sold," as a complete transfer of the entire interest of the insured is necessary to defeat the insurance thereon. Clinton v. Norfolk Mut. F. Ins. Co. (1900) 176 Mass. 486, 50 L.R.A. 833, 79 Am. St. Rep. 325, 57 N. E. 998.

And the sale of one of several pieces of property separately insured under the same policy will not void the policy as to other property, under a provision declaring a forfeiture in the event of an alienation of the property insured. Clark v. New England Mut. F. Ins. Co. (1850) 6 Cush. (Mass.) 342, 53 Am. Dec. 44.

It has been held, however, that provisions which, in addition to forbidding the property to be sold, prohibit a change of title, interest, or possession, have been violated by an absolute deed of the property to the insured's daughter, even though the deed is void as to creditors (Baldwin v. Phoenix Ins. Co. (1880) 60 N. H. 164), or by an absolute deed with a mortgage back to secure the purchase price (Savage v. Howard Ins. Co. (1873) 52 N. Y. 502, 11 Am. Rep. 741), or with a contemporaneous agreement giving the vendor an option to repurchase within one year (Tatham v. Commerce Ins. Co. (1875) 4 Hun (N. Y.) 136), or by a reconveyance of a life use in the property (Farmers' Ins. Co. v. Archer (1881) 36 Ohio St. 608). G. S. G.