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Page:Harvard Law Review Volume 1.djvu/405

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indemnified from any loss which he may suffer during the period named in the policy. If he aliens the property insured, it is true that if the property is destroyed when he has no interest therein, it is not possible for him to hold the underwriter, for he has suffered no loss. But the contractual relation between the insurer and the insured still exists in spite of the sale of the property, and if, during the period named in the policy, he regains an interest in the property, and suffers a loss of that interest, there seems to be no reason why the insurers should not be held therefor. The insured has paid his premium to be protected for the period for which the policy is issued, and it would be a hardship to him not to have the benefit of that premium.

This view would satisfactorily account for the cases in which the insured aliens the interest originally insured, but retains an interest in the property insured; as, for instance, where he sells his land, at the same time retaining a mortgage to secure the purchase-money. This view has been adopted by both Mr. Phillips and Judge Hare, and is supported by authority.[1]

It is well settled that the policy does not pass as a mere accessory to the property.[2] The policy must be assigned, and this rule applies as well to marine insurance as to fire insurance. A mere delivery of the policy would seem to be a sufficient assignment;[3] but if there is no actual delivery, the assignor must agree to assign, or, what is much the same thing, agree to hold the policy for the benefit of the assignee. In the words of Baron Parke, the parties must keep the contract of insurance alive for the benefit of the assignee.[4]

In most policies of fire insurance at the present day, it is customary for the insurers to insert a number of clauses which provide that the policy shall be void in case the provisions of them are not complied with. Two very common clauses are the clauses against alienation of the property insured, and the assignment of

the policy. It is settled that these clauses are conditions the non-

  1. 1 Phillips, Ins. 488; 2 Amer. L.C. (5th ed.) 893; Lane v. Maine, etc., Ins. Co., 12 Me. 44; Hooper v. Hudson River F. Ins. Co , 17 N.Y. 424; Wolfe v. Security F. Ins. Co., 39 N.Y. 49. See Shearman v. Niagara Fire Ins. Co., 46 N.Y. 526; Worthington v. Beane, 12 Allen, 382.
  2. Lynch v. Dalzell; Powles v. Innes (supra); North of England Oil Cake Co. v. Archangel, Maritime Ins. Co. (supra); Lahiff v. Ashuelot Ins. Co., 60 N.H. 75.
  3. Sparkes v. Marshall, 2 Bing. N.C. 761.
  4. 11 M. & W. 13.