#### WILLIAMS’ ADMRS. v. THE CINCINNATI INSURANCE COMPANY.

Insurance — insurable inteiest — mortgage—subsequent insurance — stay of execution.

Where the owner of a boat has sold her on credit, made a bill of sale reserving an interest as mortgagee, and afterwards obtain a policy to insure his own and the mortgager’s interest, the policy is good.

The stipulation in the Cincinnati Insurance policy against subsequent insurance is, in legal effect, that no insurance should be afterwards made on the insurer’s interest, with his consent; but if a subsequent policy is effected by a stranger to him without his knowledge or consent, it does not affect the first policy.

The interest of a mortgagee not in possession, is an insurable interest, although the note for the debt the mortgage secures, is not at the time of the loss under his control, being pledged, or in suit.

Of the judgment on a policy, when the interest is that of a mortgagee, a court of law will not stay execution, until the plaintiff assigned his interest in the boat or mortgage, but leave the insurer to seek his remedy as he may be advised.

Assumpsit on a policy of insurance, dated the 11th March, 1830, for $6,000, on the steámboat Neptune for eight months to Williams, *for whom it might concern.*The policy contained a stipulation that no further assurance should be made on the boat, &e. Plea nonassumpsit.

It appeared that Williams owner of the boat, in December, 1829, sold her at New Orleans to Barret and Tuft for $12,000 in instalments, and executed a bill of sale of the boat, which was duly enrolled, to which Barret and Tuft were parties. By this they stipulated to hold as mortgagees until the purchase was paid, and until then not to alien or encumber the boat. The last note for $1,250, not being paid, was left with a lawyer in New Orleans in 1831, and suit brought which is still pending. Another of the notes was endorsed to one Pico and is unpaid. The loss occurred by running on a snag which sunk the boat on the 7th of October, 1830. It was agreed between the parties that Williams should keep the boat insured for the benefit of all the parties. On the 5th of October, 1830, one Broadwell, as agent of Barret, called at the Ohio, office, and inquired if Williams had insured, and being informed that he had not, applied for insurance for $3,000, and effected a policy. A few days afterwards he called, and said he had insured by mistake, as Williams had insured in another office, and *agreed to*cancel the policy. In 1831, Marks called for the return of premium, which was refused unless the policy was surrendered and cancelled, that was not done. Barret afterwards stated that Williams tried to prevent his getting insurance, but he did not believe Williams had insured. Williams said the insurance was effected by mistake and disavowed all knowledge of it.

*Hammond*and *N.*Wright, for the plaintiff,

cited 9 *Wend. R.*404, and asked the court to instruct the jury.

1. That if Williams after the sale and mortgage, insured the boat *543for his own security, and also for the interest of the purchasers, the policy is valid.

2. That if the jury are satisfied the subsequent insurance was made without the knowledge or consent of Williams, it does not affect the plaintiff’s right to recover the amount of the note in suit at New Orleans, if he remained owner of that note when the loss occurred.

*Storer*and *Fox,*for the defendants,

cited 1 *Paine R.*615; 2 *Cranch R.*418; 2 *Pet. R.*48; 1 *Marsh. In.*346; *Phil. In,*41; 2 *Cond. Marsh.*319; 1 *Cond. Marsh.*121; 5 *Pet. R.*622. They asked the court to give the following instructions to the jury — that is to say:

1. That if the jury are satisfied that when Williams applied to the defendants for insurance, or when the policy was entered into, the nature and character of his interest was not disclosed, his administrators cannot recover on evidence, that Williams at the time of the insurance and loss, held a mere equitable or a mortgage interest not in possession.

2. That if the notes given by Barret and Tuft to Williams for the boat, were not in his power and under his control at the time of the loss so that they could be transferred to the insurance company, he had no interest, which would authorize a recovery.

3. That the making the subsequent insurance rendered the policy declared on void.

4. That the instrument of sale from Williams to Barret and Tuft, transferred his whole interest in the boat to them, and the clause concerning the notes did not re-invest Williams with any legal interest on which the action can be sustained.

5. That the policy declared on will not cover the interest of a mortgagee of a boat not in possession.

Wright, J.

The first proposition which the plaintiff asks us to give in charge to the jury, we give in the words stated. The second is refused in the language expressed, bu-t we give you as the legal construction of the stipulation in the policy, that no insurance should be made thereafter, on Williams’ interest in the boat with his assent: if, therefore, a policy is proven to have been afterwards made, with his consent, it vitiates the policy before you.

The first, second, fourth, and fifth of the defendant’s propositions we do not concur in, and refuse the fourth, because it is irrelevant to the matter in issue. Their third proposition, as requested, we also reiuse. The obtaining the second policy of insurance, will not affect the plaintiff’s right to recover, unless it was obtained with *544his consent and upon the same interest. The stipulation in the policy is that the insurer will not, either by himself or agents, make any other insurance upon the same interest. Such insurance made, by a stranger to him, without his consent, cannot affect his interest.

*Storer*

now moved that execution be stayed until the plaintiff assigned his interest in the note in suit at New Orleans to the defendants.

*N. Wright,*contra.

Verdict for the plaintiff $1493 62.

Court. The motion is overruled. The defendants are left to pursue their claim to the plaintiff’s interest, as *abandoned*to them, or their claim to subrogation to his rights, as they may be advised.