Hodges against The Tennesee Marine and Fire Insurance Company, 8 N.Y. 416

Johnson, J. The determination of the judge in allowing the amendment of the pleadings was within his discretionary power, and is not the subject of review in this court. The remaining question in the cause relates to the existence of an insurable interest in Slamm at the time of the assignment of the policy to Hodges and of the loss. If such an interest ^existed, then the plaintiff’s recovery can not be disturbed.

Upon the evidence there is no doubt of the following facts: that at the time when the insurance was effected, September 1, J848, Slamm was the owner in fee of the premises insured: that on the 4th of September, 1848, he conveyed the premises to Hodges by a deed absolute upon its face, but intended to operate as a mortgage, and that upon the same day he transferred the policy to Hodges as collateral.security; and that this transfer was made by the assent of the company.

If there is no rule of law forbidding us to take notice of the fact that the deed was intended as a mortgage, then beyond all question, Slamm as the owner of the equity of redemption in the premises had an interest in the insurance which had been effected by him as the owner of the fee, and the assignment with the company’s assent transferred this interest to Hodges as collateral security, and he may upon the ground of the same interest sustain the recovery which has been had in this case.

The question then, taking it most strongly against the plaintiff, is, whether in equity Slamm might have a bill to redeem against Hodges, notwithstanding the deed was absolute upon its face. Webb v. Rice, 6 Hill, 219, does not conflict with the proposition that such a bill might be maintained. It only professes to decide that at law unwritten evidence is.inadmissible to show that a deed was intended as a mortgage. From an early day in this state the admissibility of such evidence had been established as the law of our courts of equity, and it is not fitting that the question should now be re-examined.

Upon the authority of Strong v. Stewart, 4 J. C. 167; Clark v. Henry, 2 Cow. 332; Whittick v. Kane, 1 Paige, 206; Van Buren v. Olmsted, 5 Paige, 10; McIntyre v. Humphrey’s 1 Hoff. 34, with which agree Taylor v. Little, 2 Sumner, 228, Jenkins v. Eldredge, 3 Story, 293, in all which cases except G'/ar/c v. Henry, the point was directly before the court, we think that the plaintiff’s recovery in this case ought to be sustained. Willarb, J. On the 1st September, 1848, when the policy was made, Slamm the insured was the owner in fee of the Massasoit Hotel, the property insured.

The property was described as his in the policy. On the 4th September, 1848, Slamm assigned the policy to the plaintiff, (as collateral,) and the assignment was approved by the agent of the defendant on the same day. The complaint alleges that on the 4th September, 1848, Slamm delivered to the plaintiff a deed of the same premises executed by himself and wife, thereby conveying the property insured to the plaintiff. The deed was dated September 1, 1848, and not delivered till the 4th.

The complaint further says that prior to that time Slamm was indebted to the plaintiff in a large sum, and the assignment of the policy was made with the assent of the defendants as a further security for the debt. It is not averred or proved that the defendants assented to the conveyance by Slamm of the whole property to the plaintiffs, or that they knew of it when they approved the assignment of the policy. The deed from Slamm and wife to the plaintiff was given in evidence, and was a full covenant warrantee deed in the form usually adopted in this a state.

The circuit judge then against the defendant’s objection, permitted the plaintiff" to so amend his complaint as to aver that the said conveyance was a collateral security for the indebtedness of Slamm to the plaintiff. Evidence was given tending to prove that averment and the plaintiff recovered the amount of the policy. I. The absolute conveyance of the property by Slamm to the plaintiff avoided the policy. It is not pretended that that conveyance was assented to by the defendants The moment the interest df the insured terminated in the subject of the insurance, the policy ended. II.

The judge erred in permitting the plaintiff to prove by parol that the deed, absolute in its terms was intended, as a mortgage. (Webb v. Rice, 6 Hill, 219.) If the case is to be governed by the law of Massachusetts, the rule is the same. There was no evidence that- the law of that state differs from ours, and in the absence of any proof on the subject, we must act upon our own laws. (Robinson v. Dauchy, 3 Barb. S. C.R. 20; 2 Hill, 201; 22 Wend. 322 to 324; lb. 285, note.) Rugóles, Ch. J., and Gardiner,- Jewett and Morse, JJ., concurred with judge Johnson in favor of affirming the judgment.

Willard, Taggart and Mason, JJ., were for its reversal Judgment affirmed.