
    Andrew J. Smith versus Monmouth Mut. Fire Ins. Co.
    Á mortgage is not such an alienation of property as will defeat a policy of insurance which provides that if the property insured is alienated, the policy shall be void.
    A bond of defeasance will convert a deed, absolute in its terms, into a mortgage if such bond is seasonably recorded; and such bond is seasonably recorded if done before it is introduced in evidence, and before any change of title has taken place, or the right of any third party has attached.
    Such a case is distinguishable from Tomlinson v. Ins. Co., 47 Maine, 232, as in that, the bond introduced had not then been recorded.
    When a policy, if assigned without the consent of the insurers, is to be void, and' the assured executes an assignment to be delivered, after such consent has been obtained, but not delivered, because consent was withheld, the assignment is inoperative to affect the rights of the parties.
    Reported from Nisi Prius, Rice, J., presiding.
    This was an action of assumpsit on a'policy of insurance, dated Aug. 21, 1855, for $700' on a house in Mt. Vernon,- and $60 on the furniture therein. The writ is dated July 16, 1858. The loss occurred November 28, 1857.
    The policy contains this proviso : — "And it is also provided, that in case he shall have assigned this policy, sold or alienated the property in whole or in part, without the consent of the company, certified on the back of this policy by the president and secretary or by two of- the directors, the policy shall be absolutely void.” Also this provision: "It is mutually agreed that this policy is made subject to the lien created by law, and with reference to the votes and by-laws of. the company, which may be resorted to in explanation of the rights and obligations of the parties hereto, in all cases not herein otherwise specially provided for.” The defendant’s charter, § 6, provides for a lien on the property insured, and § 9 provides, among other things: — "And when the property insured shall be alienated by sale or otherwise, the policy shall thereupon be void.” The 8th by-law of the company provides: — "In case the insured shall have sold or alienated the property in whole' or in part without having transferred the policy to the purchaser or alienee, with the consent of the company certified by the president and secretary, or by two of the directors, on the back of his policy, then the policy shall bo absolutely void.”
    May 23, 1856, the plaintiff conveyed the property to Nathan Porter, by a warranty deed, taking back a bond for a re-conveyance on the payment of $948,36,'in one, two, and three years, in unequal instalments, bearing the same date as the deed, and under seal. The deed was recorded August 16, 1856, and the bond November 2, 1859.
    
      In defence, it was contended that this was a total alienation of the insured property, and therefore rendered the policy absolutely void, not only for the real estate, but for the furniture also ; it being one contract, entire, indivisible, one premium note given, and one premium paid.
    A circular of the directors, dated February 14, 1845, contains the following: — "Mortgaging property after it is insured does not affect the insurance, provided the incumbrance does not exceed two-thirds the value thereof.”
    
      JS. O. Bean, for the plaintiff.
    
      J. Baker, for the defendants.
   The facts in the case bearing upon the point of the assignment of the policy will appear from the opinion of the Court, which was drawn up by

Walton, J.

This is an action on an insurance policy, and it is objected that the plaintiff is not entitled to recover: 1. Because he had alienated the insured property; and 2. Because the policy was assigned without ratification.

We think the property was not alienated within the meaning of that word as used in the policy. Nor was the policy ever assigned.

The case shows that after the insurance was procured the plaintiff gave a deed of the property to Nathan Porter, but Porter, at the same time, gave back an instrument of defeasance, and the two together constituted but a mortgage; and "a mortgage of insured property is not an alienation.” Pollard v. Insurance Co., 42 Maine, 221, and authorities there cited.

But it is contended that the conveyance cannot be regarded as a mortgage, because the instrument of defeasance was not seasonably recorded, and the decision in Tomlinson v. Insurance Co., 47 Maine, 232, is referred to as decisive against the plaintiff upon this point. But the cases are not alike. In that case (Tomlinson v. Insurance Co.,) the instrument of defeasance was never recorded. In this case it was recorded. In the former the question was as to the effect of an instrument of defeasance which was never recorded, while, in this case, the instrument, when introduced in evidence, - had been recorded, and the only question is whether it was seasonably recorded. In the former case the instrument, when introduced in evidence, not having been recorded, the Court could not know or assume that it ever would be, and could not therefore allow it to have the effect to convert a deed absolute upon its face into a mortgage. In this case the instrument of defeasance,'when introduced in evidence, had been recorded, and, as before remarked, the only question-is whether it was seasonably recorded. The cases therefore are not alike, and the decision in the former is not decisive against the plaintiff in this.

Was the instrument set up as a defeasance in this case seasonably recorded? We think it was. It was recorded before it was introduced in evidence, and before the rights of any third party had attached. At the time it was recorded, the title to the real estate was in all respects in the same condition as it was when the deed and the instrument of defeasance were executed. As between the parties to it, the instrument of defeasance wás effectual to convert the absolute deed into á mortgage without being recorded; and, being recorded .before the. rights of any third parties had attached, — in fact, before any change whatever had taken place in respect to the title of the real estate to which it related, the transaction, must always remain a mortgage, "not only as between the parties, but as to all the world.

If an instrument of defeasance, recorded before it is introduced in evidence, and before the rights of any third party have attached, or the title to land has undergone any change whatever, is not seasonably recorded, the question naturally arises, within-what time should it be recorded? The difficulty at once felt in answering this question is a strong argument in favor of the conclusion to which we have arrived, that the instrument in this case was seasonably recorded, and that the objection to the plaintiff's right to recover on that account is not sustained.

Another objection to the plaintiff’s, right to recover is, that the policy had been assigned without the consent of the company. But this objection is not sustained by the evidence. It appears that the plaintiff procured an assignment to be written on the back of the policy, and sent it to the company for ratification, with directions to have the policy delivered to the assignee, in case the assignment should be ratified by the company, and, if not so ratified, to have it returned to him; and the assignment not being ratified by the company, the policy was returned to plaintiff. This was but an attempt to make an assignment, and failed for want of ratification by the company and delivery to the assignee. Such an attempt was not improper, and would not render the policy void. Judgment for plaintiff.

Cutting, Davis, Barrows and Danforth, JJ,, concurred.  