The policy does not run with the land. Tucker v. Royal Ins. Co., 220 Ala. 103, 124 So. 215; Swaine v. Teutonia Fire Ins. Co., 222 Mass. 108, 109 N.E. 825; Great American Ins. Co. v. Dover, 221 Ala. 612, 130 So. 335; 4 L.R.A. (N.S.) 762, note. Overinsurance provisions of policies of insurance are effective according to their terms. Ins. Co. of North America v. Williams, 200 Ala. 681, 77 So. 159, 161; Queen Ins. Co. v. Young, 86 Ala. 424, 5 So. 116, 11 Am. St. Rep. 51; Heldreth v. Federal Land Bank, 111 W. Va. 602, 163 S.E. 50; 26 C. J. 256; 14 R. C. L. 1065. A loss payable clause simply designates the loss payee as an appointee to receive the money, and, as to this appointee, anything that would defeat the insurer's right would defeat the appointee's right. Fire Ins. Cos. v. Felrath, 77 Ala. 194, 54 Am. Rep. 58; 38 A.L.R. 368; Crowe v. Lewin, 95 N.Y. 423. There can be no waiver of a forfeiture until the ground of forfeiture has occurred.

The contention of the insurer that the mortgagee was barred by Mellen v. Whipple, 1 Gray, 317, was rejected. See also Swaine v. Teutonia Fire Ins. Co. 222 Mass. 108, 110; Finegan v. Prudential Ins. Co. 300 Mass. 147, 154. In the Palmer case the mortgagee was specifically named while in the present case the additional insured was merely described, but we think he became identified and a party insured against the consequences of an accident coming within coverage B of the policy.

That assignment operated "to discharge the rights and obligations incident to the original parties, and by agreement of the parties and operation of law gives birth to a new contract between the insurer and the assignee upon the old terms." Swaine v. Teutonia Fire Ins. Co. 222 Mass. 108, 110. Wilson v. Hill, 3 Met. 66, 69. The custom which the plaintiff proposed to show by its expert witness was directly contrary to the terms of the contract then made and hence was not admissible. Boruszweski v. Middlesex Mutual Assurance Co. 186 Mass. 589, 593, and cases cited.

( Farmers' Pawnee Canal Co. v. Pawnee Water Storage Co., 47 Colo. 239, 107 P. 286; Hall v. Webb, 66 Cal.App. 416, 226 P. 403.) Other cases to the point of condition subsequent are: Smith v. Hoffman, 56 Mont. 299, 184 P. 842; Pettit v. Stuttgart Normal Institute, 67 Ark. 430, 55 S.W. 485; Eastern Advertising Co. v. McGaw, 89 Md. 72, 42 A. 923; Swaine v. Teutonia Fire Ins. Co., 222 Mass. 108, 109 N.E. 825; Moller v. Niagara Fire Ins. Co., 54 Wn. 439, 132 Am. St. Rep. 1115, 24 L.R.A. (n.s.) 807, 103 P. 449. The appellant succeeded to the rights and obligations of the Cove Ditch Company and is therefore bound to deliver the water.

Parker v. Middlesex Mutual Assurance Co. 179 Mass. 528, 530. Boruszenski v. Middlesex Mutual Assurance Co. 186 Mass. 589. Bennett v. AEtna Ins. Co. 201 Mass. 554. Swaine v. Teutonia Fire Ins. Co. 222 Mass. 108. There is nothing in the record to show that the defendant waived any legal right vested in it under the policy. G.L.c. 175, § 99, Seventh, provides that "There shall be printed or stamped on the filing-back of every policy, in clear type not smaller than long primer, the words `In case of fire notify the company or its local agent at once in writing.'"

It was a question of fact whether in the antecedent conferences between the plaintiff and his children any understanding was reached that the plaintiff was to make repairs as the trustee directed, and also keep the property insured for protection against loss by fire. If it be assumed that the plaintiff as tenant for life under the first declaration of trust was required to make all ordinary and necessary repairs to preserve the property and to prevent its going to decay or waste, he was not bound under the first declaration to make repairs as directed by, or in accordance with the discretion of, the trustee, nor to keep the premises insured for the benefit of the children. Harrison v. Pepper, 166 Mass. 288. Swaine v. Teutonia Fire Ins. Co. 222 Mass. 108, 110. It is manifest that the recorded declaration of trust imposed upon the plaintiff a greater expenditure than the burden which he purposed to assume.

It is plain from the foregoing findings that the defendant had procured a policy of insurance in the name of Chesnuliewicz, who represented him, the defendant in fact being the real owner of the property; that the defendant expressly promised the plaintiff to have the policy made payable to him, but failed to do so. It is also apparent that the plaintiff, by cancelling the policy he had procured in his own name immediately after the defendant promised to have the policy held by him made payable to the plaintiff, relied upon the promise so made. The presiding judge rightly ruled that the covenant to insure on the part of the original mortgagor did not run with the land. Wilson v. Hill, 3 Met. 66, 69. Swaine v. Teutonia Fire Ins. Co. 222 Mass. 108, 110. Columbia Ins. Co. of Alexandria v. Lawrence, 10 Pet. 507, 511. Farmers' Loan Trust Co. v. Penn Plate Glass Co. 186 U.S. 434, 453. Neither the defendant nor Chesnuliewicz, who held the title for him, assumed the mortgage; the defendant was not bound by the terms of this mortgage to insure the property for the benefit of the mortgagee.

Assignment and consent thereto is a tripartite contract and must in every sense be a novation to have any legal effect. Swaine v. Teutonia Fire Insurance Co., 222 Mass. 108. (5) Insurance agents, even though designated "general agents," are not substitutes for their employer with authority to do anything whatsoever but must act within the apparent scope of their authority. Continental Insurance Company v. Schulman, 205 S.W. 315.

der a conditional sale from the Henley-Kimball Company, by the terms of which a certain part of the purchase price had been paid in cash while the balance was payable in instalments. It was further provided that the conditional vendor should effect the insurance and pay the premium which was to be added to the price, and upon the final payment of the entire indebtedness a bill of sale was to be given. It is contended by the defendant that their relation was analogous to that of mortgagor and mortgagee under a policy made payable to the mortgagee as his interest may appear, and their interests being several, the contract of insurance could be enforced by either to the extent of his rights in the property, and a settlement with one would not bar the rights of the other if compliance with the precedent condition were shown. See Copeland v. Mercantile Ins. Co. 6 Pick. 197; Tate v. Citizens' Mutual Life Ins. Co. 13 Gray, 79; Palmer Savings Bank v. Ins. Co. of North America, 166 Mass. 189; Swaine v. Teutonia Fire Ins. Co. 222 Mass. 108, 110; Beebe v. Ohio Farmers' Ins. Co. 93 Mich. 514. It is unnecessary, however, to determine the nature or scope of the contract, for on the record neither party had any enforceable rights.

And the plaintiff's right to recover for the full amount of the loss with the consent of the trustee which appears in the stipulation filed before the auditor without objection by the defendants, renders immaterial the question of parties plaintiff as well as the defendants' requests as to the rights of the trustee if he had brought suit on the policies. Coulter v. Haynes, 146 Mass. 458. Jackson v. Farmers' Mutual Fire Ins. Co. 5 Gray, 52. Turner v. Quincy Mutual Fire Ins. Co. 109 Mass. 568. Palmer Savings Bank v. Ins. Co. of North America, 166 Mass. 189. Swaine v. Teutonia Fire Ins. Co. 222 Mass. 108, 110. Collinsville Savings Society v. Boston Ins. Co. 77 Conn. 676. It also has been held, under policies in the form of the present contracts, that no duty is imposed on the trustee to give notice or to furnish proofs of loss. Heilbrunn v. German Alliance Ins. Co. 140 App. Div. (N.Y.) 557, affirmed in 202 N.Y. 610. The submission to the jury of the questions and their answers, that as to the trustee notice was given within a reasonable time after he had knowledge of the loss, and that the defendants had waived any insufficiency or invalidity of notice of loss, as well as the requests concerning his relations to the parties and to the litigation need not be further considered.