
    Martin Carroll and Another versus The Boston Marine Insurance Company.
    None but the assured in a policy of insurance, or their legal representatives in case of their death, can avail themselves of the contract; except in case of the transfer of the vessel, and an assignment of the policy, with the assent of the underwriter thereto, either express or implied.
    Assumpsit on a policy of insurance, brought by Martin Carroll and Ebenezer Gay, Esq. assignee of Joshua Snow, a bankrupt. By the policy the defendants assured for the said Carroll and Snow the sum of 1400 dollars on the schooner Union for one year from the 9th day of May, 1801. The plaintiffs declare for a total loss by the perils of the sea within the year.
    * At the trial, which was had here at the last November term before Sewall, J., it was in evidence that the schooner sailed in the month of December, 1801, from the province of Nova Scotia, bound to some port in the United States, and had never since been heard of.
    The defence set up was, that before the loss took place, viz. on the 23d of September, 1801, Carroll and Snow conveyed the vessel by a regular bill of sale to one Nathaniel Waterman, who afterwards caused her to be duly enrolled at the custom-house for the port of Boston in his name, conformably to said bill of sale.
    The judge directed a nonsuit, subject to tfye opinion of the Court, whether the change of property by the said transfer determined the interest of the assured in the policy declared on.
    At the last term it was moved by Dexter and Thurston, of coun sel for the plaintiffs, that the nonsuit be set aside, and the action sent to another trial; and in support of the motion it was stated, that the bill of sale to Waterman, though absolute on the face of it, was intended by the parties only as a pledge or security, to indemnify him against a bond, which he had entered into upon a replevin of the vessel, which had been attached, and replevied by Carroll and Snow.—It was also stated that afterwards, viz. on the 11th of November, 1801, Waterman agreed with Snow for the absolute purchase of his moiety of the vessel, and had paid him for the same ; and that on the 6th of May, 1802, three days before the expiration of the policy, Waterman, by a bill of sale duly executed, conveyed a moiety of the vessel to the plaintiff Carroll.
    
   The action stood over to this term, after an argument by Dexter and Thurston for the plaintiffs, and Jackson for the defendants, and now the opinion of the Court was delivered by

Parker, J.

It being agreed that, in order to entitle the plaintiff to recover, he must prove an interest in the property at the time the loss happened, the only question *is whether the facts, of which evidence was stated to exist, establish that point.

It has been repeatedly decided here that, under the forms of our policies, none but the parties to the contract, or their legal representatives in case of their death, can avail themselves of the contract; although others may in fact have an equitable or even legal interest in the property insured. The only exception to this rule, which has been admitted, exists where a policy has been bona fide, and for a valuable consideration, assigned, with notice to the underwriter, and an assent on his part, either express or implied. This case does not come within the exception ; for here the property assured was, according to the terms of the conveyance between the assured and Waterman, absolutely conveyed to the latter, and all the official documents proving the ownership of the vessel were in conformity to this conveyance,

But it has been stated in the motion for a new trial, that this was a mere feigned transaction, and that, according to a secret trust and bargain between the assured and Waterman, the property was not in truth changed; but merely a lien upon it given to Waterman, to indemnify him against a bond which he had executed for their benefit.

We cannot admit the parties to allege facts, which would prove the conveyance fraudulent, to restore them to the rights which they had lost by the transfer. They might have mortgaged the vessel, if security to Waterman was alone intended. Every document proves an absolute transfer; and these documents must be conclusive in establishing the property of the vessel between the. parties.

But Waterman is in fact, according to the intention of the parties, made the owner of at least one moiety of the vessel by a subsequent transaction; and he does not convey the other moiety back to Carroll, until long after the vessel must have been presumed to be lost; for she sailed from Nova Scotia to some poit within the United States in December, 1801, and this conveyance was not executed until * May, 1802. So that at the time the loss took place, Waterman was the sole legal owner of the vessel. He cannot recover, because he is not a party to the contract of insurance; nor has it been assigned to him. And the present plaintiffs cannot recover, because at the time of the loss, they certainly had no legal interest in the property insured; nor can an equitable interest be proved, without utterly destroying the character of their own conveyance so Waterman. ■

Costs for the defendants 
      
      
         [The claim upon a policy for a loss, after it has happened, may be effectually assigned. Brichta vs. The Lafayette Ins. Co., 2 Hall, 372. — Ed.]
     