Lead. Cas. 298; Fowler v. Shearer, 7 Mass. 21; Jackson ▼. Vanderheyden, 17 Johns. 167; S. C., Ewell's Lead. Cas. 310; S. C., 8 Am. Dec. 378.

The reason of the rule in one case is stated to be that: "The wife may be influenced or persuaded by her husband to execute the deed with him, know. ing its effect as an alienation; but she may not know the nature and effect of the covenants contained in it; and to hold her liable on the covenants can not be necessary to the conveyance, nor beneficial to her family, but may be greatly to her prejudice:" Fowler v. Shearer, 7 Mass. 21; nor are a wife's heirs liable after her death, upon her covenants, for any breach thereof: Foster v. Wilcox, 10 R. I. 443.

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ESTOPPEL, DOCTRINE OF, IN JOINT DEEDS OF HUSBAND AND WIFE.— Upon the question of the effect of covenants of warranty in a joint deed of husband and wife, of the latter's lands, there is not a uniformity in the decisions of the different states. In some of them the broad principle is laid down that she is thereby estopped from denying that she had title at the time of the conveyance, and from setting up any after-acquired title: Lessee of Hill v. West, 8 Ohio, 225; S. C., 31 Am. Dec. 442; Fletcher v. Coleman, 2 Head, 388; Spofford v. Nash, 10 Metc. 291; King v. Rea, 56 Ind. 19; Fowler Shearer, 7 Mass. 14; Colcord v. Swan, Id. 291; Massie v. Sebastian, 4 Bibb (Ky.), 436. In Lessee of Hill v. West, supra, the court, in reviewing a few of the above cases, say: "These cases may not seem to be founded upon the reasons which are usually assigned, why the covenants in a deed should operate by way of estoppel, that is, to prevent circuity of actions. Still, they seem to us to be reasonable, and such as tend to the furtherance of justice; and when a married woman undertakes, in conjunction with her husband, to convey her land with covenants of warranty, it is sufficient to protect her from the payment of damages for the breach of those covenants; for all other purposes they should be held operative." So also it has been held that an heir and residuary devisee, who has given bond as such devisee to pay the debts of his testator, is estopped to set up a subsequent title as heir of the testator's wife, against a warranty deed made by the testator of her land, although all right of action upon the covenants in that deed is barred by the statute of limitations: Cole v. Raymond, 9 Gray, 217; but where a married woman executed a warranty deed, bearing date previous to her marriage, by the name which she then bore, without disclosing the fact of her marriage, with the fraudulent purpose of imposing upon some person to be affected by it, she is not estopped, nor are her heirs, to set up her title as against her grantee: Lowell v. Daniels, 2 Id. 169.

The leading case holding that a wife is not estopped by her covenants of warranty from asserting an after-acquired title, is that of Jackson v. Vanderheyden, 17 Johns. 167; S. C., 8 Am. Dec. 378. That was an action of ejectment. The plaintiff gave in evidence a deed from the defendant and her husband, by which they conveyed the premises in fee to the plaintiff, with warranty. The defendant offered to prove an outstanding title, but it was objected that she was estopped by the covenants in her deed, but the objec tion was overruled, and the supreme court affirmed the judgment. Chief Justice Spencer, in delivering the opinion, said: "Such a deed can not oper ate as an estoppel to her subsequently acquired interest in the same land." The same doctrine has been affirmed in Gonzales v. Hukil, 49 Ala. 260; S. C., 20 Am. Rep. 282; Teal v. Woodworth, 3 Paige's Ch. 470; Wadleigh v. Glines, 6 N. H. 18; S. C., 23 Am. Dec. 705; Carpenter v. Schermerhorn, 2 Barb. Ch. 814; Hopper v. Demarest, 21 N. J. L. 541; Wight v. Shaw, 5 Cush. 63.

In the last case, a married woman, being tenant in common with her broth

ers and sisters, each of a vested remainder in one sixth part of certain land, joined with her husband in a quitclaim deed of "all the right, title, and estate" which they had in the same, with a covenant that neither they nor their heirs, nor any persons claiming from or under them, should by any means have, claim, or demand any right or title in the premises. The wife afterwards, by the decease of three of the tenants in common, became the owner with the surviving tenant in common of three sixths of the estate. The court held that nothing more passed by the deed than the one sixth, to which the wife was then entitled, and that her heirs were not estopped thereby from demanding her share of the three sixths subsequently acquired. A recital in a deed of trust of a married woman's separate estate, that it was given to secure her indebtedness, does not estop her from showing that they were given for supplies furnished for a plantation which her husband cultivated in his name and for his benefit: Bank of America v. Banks, 101 U. S. 240; but a feme covert can not deny facts essential to the deed, where she has conveyed her lands in the form prescribed by law, such as, that a consideration was paid: Grant v. Townsend, 2 Hill, 557. Under a recent statute, a married woman may now bar herself in Massachusetts by a warranty deed from claiming under an after-acquired title: Knight v. Thayer, 125 Mass. 25; and this would probably be true in many other states: Bigelow on Estoppel, 4th ed., 278.

HOLMES ET AL. v. CHARLESTOWN M. F. Ins. Co.

[10 METCALF, 211.]

IN FIRE POLICIES, REPRESENTATIONS MADE AT THE TIME OF OBTAINING THE POLICY are not a part of the policy unless distinctly referred to in it. When so referred to they become a part of the contract, and are to be construed with it.

WHERE POLICY IS GIVEN UPON THE CONDITIONS EXPRESSED IN THE RULES AND REGULATIONS of the company, one of which is that "not more than three fourths of the value of any building shall be insured by this company," and the value of the building is not stated in the policy, resort may be had to the application for the purpose of ascertaining that value. VALUE STATED IN APPLICATION FOR INSURANCE is binding upon the parties, and, after a loss, the assured is not at liberty to show that in fact it was worth a much larger sum.

WHERE POLICY IS EXPRESS AS TO THE SUBJECT OF THE INSURANCE, the court can not change the contract and make one for the parties, and apply the insurance to chattels not insured, because the plaintiff intended to insure them.

PAROL EVIDENCE IS NOT ADMISSIBLE, IN AN ACTION ON A FIRE POLICY which clearly states the property insured, to show a mistake, and that it was the intention to insure other property.

ASSUMPSIT on a policy of insurance. Plaintiffs were nonsuited. The facts sufficiently appear in the opinion.

Barton and Bacon, for the plaintiffs.

C. Allen, for the defendants.

By Court, HUBBARD, J. Several questions of some importance have been raised and argued in this case, which it is unnecessary to decide. The question on which the case turns is: What sum was actually insured? the defendants having paid all which they acknowledge to be due, before the trial of the action.

The policy itself is explicit. It assumes the risk as follows: Under the conditions and limitations expressed in the statute regulating mutual insurance companies, and the rules and regulations of the company, "the sum of thirty-five hundred dollars on their meeting-house, and fixtures in the same, situated in Worcester aforesaid, on Columbia street, being not more than three fourths the actual value of said property, as appears by the application for this insurance, lodged with the secretary of this company."

The rules and regulations referred to are to be taken as part of the contract, in the same manner as if they had been introduced into the body of the policy; and are to be construed either as representations or stipulations and agreements, according to their nature and intent. They differ from the representations relating to marine risks, which representations are the statements or basis upon which the contract is founded, and are not treated as a part of the contract itself. As the owner of a vessel and cargo is generally in a position to know the character, value, and situation of the property to be insured, much better than the underwriter, his representations are received and acted upon as true; and if afterwards they turn out to be false in some matter or thing material to the risk, then, in consequence of such misrepresentation, the contract is avoided, although the statement was made in ignorance or through mistake, and not from a fraudulent design. But in fire policies a different practice prevails, and the representations, so far as they are distinctly referred to in the policy, become parts of the contract, and are to be construed with it: Houghton v. Manufacturers' Mutual Fire Ins. Co., 8 Metc. 114 [41 Am. Dec. 489].

As to these defendants, it is one of their regulations (art. 14), that "not more than three fourths of the value of any building shall be insured by this company." This is agreeable to the provision of the revised statutes, c. 37, sec. 28, on the subject of mutual fire insurance companies, which is, that "they may insure, for a term not exceeding seven years, upon any building within this state, any amount not exceeding three fourths of the value thereof." This is a wise and salutary provision, and serves alike for the protection of the stockholders and the individual

insured. The design is to prevent frauds and negligence, by making it an object with the owner to guard his property from exposure to fire and to preserve it from destruction when the calamity comes; and by this increased security to induce honest persons, who are men of property, to become members of such companies, and who will be able and willing to contribute in the event of loss.

In the contract now under consideration, the value of the building insured is not stated in the policy, and we are to resort to the application, for the purpose of ascertaining that value. It will not answer to take the sum insured as furnishing the evidence of the value of the property by adding one third to it; because, if this would be sufficient, the valuation would become a matter of form only, and the contract would in fact be regulated, not by the value of the property, but by the sum insured; a species of insurance which it was not the intent of the legis lature to countenance, when granting such acts of incorporation.

On referring to the application, the value of the building is agreed to be four thousand dollars; and the plaintiffs now ask liberty to show that it was, in fact, worth a much larger sum at the time of the insurance. But such evidence is inadmissible, and the valuation, if made in good faith, is binding on both parties. The converse of this proposition has arisen in two cases upon fire policies, and in them it is distinctly settled that the companies were concluded on the question of overvaluation, the same not being fraudulent: Borden v. Hingham Mutual Fire Ins. Co., 18 Pick. 523 [29 Am. Dec. 614]; Fuller v. Boston Mutual Fire Ins. Co., 4 Metc. 206. If then underwriters are precluded from going into evidence to show an overvaluation, when no fraud is alleged, owners must in like manner be concluded, when the property is undervalued. The value being fixed at four thousand dollars, the contract does not, by law, cover more than three fourths of that sum; for it is admitted, and very properly, that the words "and the fixtures in the same" do not constitute the subject of a separate insurance. The fixtures are a part of the building itself, and are included in the estimates of its value. They are like the term "appurtenances" when applied to the insurance on a vessel.

In looking at the application, we are strongly inclined to the opinion that the plaintiffs intended to insure three thousand dollars on the building and five hundred dollars on the furniture and other movables; but the policy is express, as to the subject

of the insurance, and we can not change the contract and make one for the parties, and apply the insurance to chattels not insured, because the plaintiffs intended to insure them: Higginson v. Dall, 13 Mass. 96; Wiggin v. Boardman, 14 Id. 12; Ewer v. Washington Ins. Co., 16 Pick. 502 [28 Am. Dec. 258]; Miller v. Travers, 8 Bing. 244.

It is said that the proposals were filled out by the agent of the defendants, and so the company are bound either to admit parol evidence of the alleged mistake, or to alter the policy in conformity to the application. The person who made out the proposals was at least as much the agent of the plaintiffs as of the company, in doing this act; but however viewed, it can not affect the contract as it exists, nor open the door for the admission of parol evidence to alter its provisions. In what manner a court of equity would treat an application to amend a policy, we are not called upon here to decide.

Besides, the policy was delivered to the plaintiffs, and they must be presumed to have examined it at the time they received it, to have known what it contained, and to have understood its import. But they slept over it nearly four years, without requesting any alteration therein, until the loss happened, when the rights and liabilities of the respective parties were fixed, and the directors might not feel authorized to alter the terms of the policy.

The plaintiffs having received three fourth parts in value of the building, as insured and valued by the terms of the contract, the nonsuit must stand.

VALUATION OF PROPERTY IN A POLICY OF INSURANCE, in case of a loss, is conclusive upon the parties, in the absence of fraud: Patapsco Ins. Co. v. Biscoe, 28 Am. Dec. 219; Millaudon v. Western Marine and Fire Ins. Co., 29 Id. 433. Overvaluation of property insured, whereby an insurance is effected to an amount exceeding that to which the company is authorized to insure, is binding, if there be no fraud or concealment, and the insurers knew, or had full means of knowing, the real value of the property; and in case of a loss, the company is liable for the full amount of the policy: Borden v. Hingham Mut. Fire Ins. Co., Id. 614, and for a full discussion of overvaluation of insured property, see note, 616; Fuller v. Boston Mut. Fire Ins. Co., 4 Metc. 206; Phillips v. Merrimac Mut. Fire Ins. Co., 10 Cush. 350.

PAROL EVIDENCE TO VARY WRITTEN AGREEMENT: See note to Enver v. Washington Ins. Co., 28 Am. Dec. 259, where cases are collected; policy of insurance may be explained and controlled by the written application to make the insurance: Norris v. Insurance Co. of North America, 2 Id. 360. WHERE THE TERMS OF A POLICY are clear and explicit, the court will not hear any suggestion or proof of mistake: Cheriot v. Barker, 3 Am. Dec. 437; Barrett v. Union Mut. Fire Ins. Co., 7 Cush. 180; Lee v. Howard Fire Ins. Oo, 8 Gray, 589, 594; Jenkins v. Quincy Mut. Fire Ins. Co., 7 Id. 374.