Illinois Mutual Fire Insurance Company v. O'Neile. been the invariable usage of said company; which testimony the court refused to allow them to give; to which refusal, the plaintiffs in error at the time excepted. It also appears, from the policy sued on, that on the 29th day of May, 1849, the said defendant in error procured the written assent of said company on the back of his policy, to his removal of his goods to his new storehouse, mentioned in the foregoing letters. The jury, having found for the defendant in error the sum of $402.25, the plaintiffs in error moved for a new trial; which motion the court overruled. To which decision of the court, in overruling said motion, the plaintiffs in error at the time excepted; and now bring this case by writ of error into this court, and make the following points upon the assignment of errors: 1st. The defendant was bound by the 18th section of the charter to give the said company notice of the additional insurance made by him, and obtain the written assent of the company on his policy. 2d. The said defendant in error had not, at the time of the fire, an amount of goods at his own risk, equal in value to the amount covered by the said policy, as required by the charter and usages of said company. 3d. The testimony which the plaintiffs offered to make by Atwood, was proper and pertinent, and should have been allowed. DAVIS & EDWARDS and J. GILLESPIE, for plaintiffs. D. J. and H. S. BAKER, for defendant, Cited, 23 Pick. 418; 2 Watts & Serg. 544; 5 Ohio, 466; 2 American Leading Cases, 343; 2 Phillips on Insurance, 62; 5 Hill, 298; 1 Marshall on Insurance, 146; 2 Wharton's Dig. 54, § 11; 7 Hill, 122; 3 Comstock's Rep. 124 to 127; 2 Id. 237, 241 to 244. CATON, J. The questions in this case do not admit of a moment's hesitation. After the policy before us was effected, the assured took out another policy, from another company, on his Illinois Mutual Fire Insurance Company v. O'Neile. stock of goods, without advising the appellants of that fact, and without their sanction. This, they insist, avoids their policy, and rely upon the 18th section of their charter, which is as follows: "If insurance on any house or building shall be and subsist in said company and in any other office, or by or from any other person or persons at the same time, the insurance made in and by said company shall be deemed and become void, unless such double insurance subsist by and with the consent of the directors, signified by indorsement on the back of the policy, signed by the president and secretary." Here, the insurance was on a stock of merchandise; and, although it was strenuously insisted upon by counsel, I cannot think that it is necessary to enter into an argument to prove that the property insured was not a "house or building," and that consequently that section does not apply in this case, but shall content myself with stating, that it is the opinion of this court that this stock of goods was not such an edifice. The usage of the company in relation to additional insurance upon personal property, which was offered to be proved by Mr. Atwood, was properly excluded. No usage of the company, nor even the express agreement of the parties, whether made previous to, or at the time of, the execution of the policy, can be admitted to explain, modify, or control the written contract. Insurance Co. v. Hone et al., 2 Comstock, 235. The judgment must be affirmed, with costs. Judgment affirmed. The jurisdiction of courts of equity in matters of partition is undoubted, and in many cases is indispensable. A bill in chancery lies for partition, notwithstanding an adverse possession, unless it has been continued long enough to bar a recovery under the statute of limitations. The husband cannot convey any greater interest in the real estate of his wife than he possesses. And where his right to such estate was during coverture, it is terminated by a divorce a vinculo matrimonii granted for his misconduct. It is not always necessary to dispose of a cross-bill, filed for improvements upon the land sought to be partitioned, at the time the decree for partition is made. TEMPERANCE GOINGS filed her bill in the Pike Circuit Court, in August, 1849, alleging, That on the 8th of February, A. D. 1844, one William Howey departed this life, intestate, unmarried, and without issue, and without parents living; that the complainant and one James M. Howey were the only brother and sister of the deceased William Howey; that said William Howey died seized in feesimple of the real estate following: The north half of section 13 95 Howey et al. v. Goings. one, the north-east quarter of the north-east quarter of section two and the south-west quarter of the north-east quarter of section two, all in township seven south, range three west of the 4th parallel meridian; that as one of the two heirs of said William Howey, she is the owner in fee-simple, of the equal, undivided half of said lands; that James M. Howey, her brother, became entitled, on the death of said William Howey, of the other half of said lands; alleges, that John P. Stark and Hezekiah Applegate, are in possession of part of said lands, claiming some interest or title through James M. Howey; that at the time of the death of William Howey, she was the wife of one Jonas Goings; that afterwards, at the May term of the Adams Circuit Court, Illinois, for the year 1849, she obtained a divorce from said Goings, for the cause of adultery; that said Goings thereby lost his right to be tenant by the curtesy; bill makes James M. Howey, Jonas Goings, Hezekiah Applegate, and John P. Stark, defendants, and prays for partition of the lands aforesaid. Summons having been served on all the defendants, default of the defendant Goings was entered at the March term of the court, A. D. 1850, and bill taken as confessed against him; leave given at the same time, for the other defendants to answer. In November, 1849, the answers of the defendants, Howey, Stark, and Applegate, were severally filed. Defendants set forth in their several answers, the facts following: That after the decease of William Howey, there was a partition of the lands described in the complainants' bill, between the defendant Jonas Goings and the defendant James M. Howey, (the defendant, Howey supposing that said Goings had the right to make such a partition); that the north half of section one aforesaid, was divided equally by an east and west line; that the south half thereof, together with the north-east quarter of the north-east quarter of section two aforesaid, was assigned to the said James M. Howey, and the north half of said north half of section one aforesaid, together with the south-west quarter of section two aforesaid, was assigned to the defendant Goings; that upon such partitions being made, said James M. Howey executed to said Goings, a deed in fee-simple, with covenants of warranty for the partition of said lands so assigned |