Heald v. Builders' Mutual Fire Insurance , 111 Mass. 38 ( 1872 )

Colt, J.

The plaintiff had no insurable interest in the hay and straw named in the policy of insurance. He claims title by bill of sale from Benjamin B. Roberts and Daniel R. Heald, who harvested the same under a lease from the Hubbards. The lease was in writing, and contained a clause in these words: “ The lessees agree that they will carefully tend and fodder the stock kept on said premises, with the hay and other fodder which shall grow or be raised on said premises; and that they will not sell, dispose of, or carry away, or suffer to be carried away from said farm any of the hay or fodder of any kind, or any of the manure which shall be made on said premises, except by written agreement of the lessors.”'

The principal part of the stock on the farm was the property of the lessors. The plaintiff knew of this provision in the lease, and the bill of sale to him was made without the written agreement of the lessors. Whatever remote interest the tenants had in the produce of the farm, they had no property in it which they could dispose of by sale. The lessors had the right to reserve the crops, or any interest in them, in advance. It was in the nature of a reservation of rent. Taylor Landl. & Ten. § 152. It is not simply an agreement or covenant that none of the productions named should be carried away, for breach of which they would be liable in damages; but it was an agreement that it should not be sold. It was a limitation on the title, which was to remain in the landlord subject to the tenants’ right to use it in the cultivation of the farm. It is an evasion to say that the interest which the tenants had in the possession and use of the property, and in the profits which might accrue from its use upon the farm, passed by the bill of sale to the plaintiffs, and was an insurable interest. This would defeat the plain words of the agreement, one purpose of which no doubt was to avoid conflicting claims of other parties, which might arise under a sale. Lewis v. Lyman, 22 Pick. 437. Briggs v. Oaks, 26 Vt. 138.

Nor is it a valid objection that these productions of the farm were not in existence at the time the contract for the appropriation of them was made. The subject matter of the agreement existed potentially, and was subject to the disposition thus made in advance by the owners of the land. Lewis v. Lyman, 22 Pick. 437, 442. Smith v. Atkins, 18 Vt. 461. In accordance with the terms of the report, a New trial must he had.