One ground of the motion for a nonsuit made on the trial was, that there was no proof that the Secretary of the Company had authority to consent to the assignment of the policy of insurance. On this point I cannot entertain a doubt that the evidence was pertinent and sufficient to carry the cause to the jury; and the jury having found in favor of *Page 294 the existence of the authority, their verdict is conclusive as to this branch of the case.
It was insisted, on the part of the plaintiffs in error, that the mortgage given by the defendant in error to Gridley, was an alienation of the property insured within the meaning of the seventh section of the act according to which this Company was incorporated, (Stat. 1836, p. 44, § 7,) and therefore that it avoided the policy. The language is, "whenever any property insured with this corporation shall be alienated by sale orotherwise, the policy shall thereupon be void," c. The Legislature without doubt used the word in the ordinary sense which belongs to it, and it seems to me quite clear that it does not embrace a mortgage which creates but a lien or security, and does not transfer the title.
Nor did the policy become void by reason of the 13th by-law of the Company, requiring, when a mortgage is given by the insured, that he shall make a written representation thereof to the Company. It may fairly be presumed from the evidence in the case, and the jury have so found, that this requirement was complied with, or that it was dispensed with by the authority of the Company.
If the giving of the mortgage by the insured had been analienation of the property within the seventh section of the, act, the action would have to be brought in the name of the assignee of the policy; but as the case was not within that section, the suit was properly brought in the name of Conover. (Jessel vs. Williamsburgh Ins. Co. 3 Hill 88; Mann vs.Herkimer Ins. Co. 4 Hill 187.)
I see no error in the judgment, and am of opinion that the same should be affirmed.
Judgment affirmed. *Page 295