John W. Work & wife & another vs. The Merchants' and Farmers' Mutual Fire Insurance Company, 11 Cush. 271

Metcalf, J. When this policy was made, the insured premises were the property of J. E. P. Austin and Mrs. Work, as tenants in common. But the premises were represented, in the application for insurance, and they were insured, as the property of J. E. P. Austin and company, though there was at that time no such firm, the partnership having been dissolved by the death of French, the only other partner. If, then, any one’s property was legally insured, it was the property of J. E. P. Austin, which was only an undivided mbieiy of the premises insured.

It does not appear, nor is it a legal presumption, that those premises were partnership property, or that J. E. P. Austin had, as surviving partner or otherwise, any lien on his deceased partner’s moiety, or any insurable interest in it. There has been no assignment of the policy to Mrs. Work; and as French, her father, had no interest in it, she cannot have any, as his heir. J. E. P. Austin’s interest in it has been assigned to John Austin, one of the plaintiffs. Whatever his legal rights may be, under the assignment, Work and wife, the other plaintiffs, have no interest in the policy.

We cannot give any effect to the testimony of J. E. P. Austin, as to his informing the defendants’ agent respecting the legal ownership of the property insured, and the purpose for which insurance was sought. The legal effect of the written policy is to be ascertained only from its terms. All previous oral statements or engagements must be disregarded. Lowell v. Middlesex Mutual Fire Ins. Co. 8 Cush. 127. And by the terms of the policy, the property of J. E. P.' Austin and company, and no other, was insured by the defendants. Assuming, (without expressing an opinion,) that J. E. P.

Austin’s moiety was legally insured, and that John Austin has acquired, by the assignment, a right to maintain an action on the policy, yet he must sue alone. The misjoinder of Work and wife, as coplaintiffs with him, prevents a recovery in this action. Exceptions overruled. Thomas, J. did. not sit in this case.