
    Mary Dailey, administratrix, vs. Westchester Fire Insurance Company.
    Suffolk.
    Nov. 13, 1880. —
    April 11,1881.
    Lord, Soule & Field, JJ., absent.
    If a policy of insurance against fire, payable in case of loss to a mortgagee of the premises insured, provides that it shall become void if the property insured shall “be sold," a conveyance by the heirs of the assured, after his death, to the mortgagee, by a deed absolute in form and containing no mention of the mortgage and no declaration of trust in favor of the grantors, avoids the policy; and the fact that the grantee, when he took the deed, orally agreed to sell the estate in a few months and account to the grantors for the proceeds after paying his mortgage, does not show an intention to charge the estate with a trust, or operate to prevent the whole title from vesting in him.
    Contract upon a policy of insurance against fire, issued by the defendant to John Dailey, the plaintiff’s intestate, for the term of one year from June 10, 1876, upon certain premises in West Quincy. Trial in the Superior Court, without a jury, before Bacon, J., who ruled that the action could not be maintained, and found for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.
    
      O. F. Donnelly, for the plaintiff.
    
      A. Buss, for the defendant.
   Colt, J.

This policy of fire insurance contained a clause which provided that it should become void “if the property” insured “should be sold.” When John Dailey, the plaintiff’s intestate, procured the insurance, the premises were subject to a mortgage to John Lyons, and the policy was on its face made payable to him in case of loss as mortgagee. After the death of Dailey, the land and building insured were conveyed by his heirs to Lyons, by a deed absolute in form and containing no mention of his mortgage and no declaration of trust in favor of the grantors. There is nothing to control the effect of this deed. It does not appear that it was given in consequence of fraud, or under any undue influence; or without a sufficient consideration ; or with the intention not to transfer what equity of redemption the grantors had; or to create a trust in their favor in the land itself. In the absence of fraud, such a conveyance is effectual to transfer the mortgagor’s right of redemption. although as between mortgagor and mortgagee the transaction is suspiciously viewed in a court of equity. Falis v. Conway Ins. Co. 7 Allen, 46. Trull v. Skinner, 17 Pick. 213.

The testimony of Lyons to the effect that, when he took the deed, he agreed orally to sell the estate in the following May or June, and account to the heirs for the proceeds after paying his mortgage, does not show an intention to charge the estate with a trust, or operate to prevent the title of the whole, both legal and equitable, from vesting in him.

It follows that there was a sale of the property within the terms of the policy, which avoided the insurance.

Exceptions overruled.  