Campbell v. Hamilton Mutual Ins. , 51 Me. 69 ( 1863 )

The opinion of the Court was drawn up by

Apuleton, C. J.

The policy in the case before us, by its terms, is "accepted by tho insured, subject at all times to the conditions and regulations of the Act of Incorporation and By-laws of said company, which conditions and regulations are hereby declared to form a part hereof.”

It is provided by the By-laws, Art. 15th, that "when any property insured shall be alienated or incumbered by sale, mortgage, assignment, bond or otherujise, the policy shall thereupon be void;” and, by Art. 19th, "policies void in part shall be void in the whole.”

It was held, in Adams v. The Rockingham Mut. Fire Ins. Co., 29 Maine, 292, that an alienation had occurred, when the insured, upon his own application, had been decreed a bankrupt and his assignee in bankruptcy had been appointed. It was decided, in Edes v. Hamilton Mut. Ins. Co., 3 Allen, 362, that, "if the owner of property, which is insured by a policy which contains an express provision that the by-laws of the company are declared to form a part thereof, mortgages the same in violation of one of the by-laws, tho policy is thereby defeated. So when a by-law provides that all alterations in the ownership of property insured in any material particular shall make void any policy covering such property, unless consented to or approved by tho directors, a mortgage of the property insured was held a material alteration in the ownership thereof. Edmands v. Mutual Safety Fire Ins. Co., 1 Allen, 311.

The premises insured, at the time of their insurance, were subject to a mortgage, as appears by the application. While the insurance was in full force, the equity of redemption was sold on an execution against the insured.

. An incumbrance is defined to be "whatever is a lien upon an estate.” 1

'. ■ "The right of a third person in the land in question to the diminution of the value of the land, though consistent with the passing of the fee by a deed of conveyance, is an incumbrance. So is a lien by judgment or mortgage.” Bouv. Law Dictionary. "Incumbrancer — one who has an incumbrance or legal claim upon an estate.” — Webster’s Dictionary. "Incumbrance — liabilities resting upon an estate.” Worcester’s Dictionary.

The estate insured was incumbered by the sale of the equity. It passed thereby from the insured unless redeemed. It was sold and the estate does not revest in the debtor except upon payment of the price for which it was sold. Before the title becomes perfect in the purchaser by lapse of time, it constitutes a lien or incumbrance upon the estate, which must be removed before any one could acquire an indefeasible right thereto. The equity of redemption was sold for a specific sum., That constituted an incumbrance upon the estate. The .property insured was incumbered by a sale within the letter‘and the spirit of the by-law referred to and the policy thereby became void.

The sale of an equity of redemption, when the title thus acquired is perfected by lapse of timé, constitutes an alienation. Before the right of redemption has expired, it must be regarded an incumbrance upon the estate.

Plaintiff nonsuit.

Davis, Kent, Walton and Dickerson, JJ., concurred.