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gagor and owner, unless forfeited, or is void as to him; it is only when the policy is voided as to the insured or mortgagor or owner, that he loses the benefit of the insurance in reduction or payment of the mortgage, and the insurance company acquires any right to foreclose or enforce same through subrogation or assignment;' but rule is otherwise where, independently of the owner and mortgagor, the mortgagee obtains the insurance in his own name and upon his own interest.
1. Insurance Co. of N. A. v. Martin, 151 Ind. 209, 51 N. E. Rep. 361; Sterling Ins. Co. v. Beffrey, 48 Minn. 9, 50 N. W. Rep. 922, 21 Ins. L. J. 274; Eddy v. London Assur. Co., 65 Hun, 307, 20 N. Y. Supp. 216, affd., 143 N. Y. 311, 38 N. E. Rep. 307; Ulster County Sav. Inst. v. Leake, 73 N. Y. 161. And see Doran v. Franklin Ins. Co., 10 Ins. L. J. 842, 86 N. Y. 635, memo. not fully reported; Kernochan v. New York Bowery Ins. Co., 17 N. Y. 428; Badger v. Platts, 68 N. H. 222, 44 Atl. Rep. 296; Concord Mutual Ins. Co. v. Woodbury, 45 Me. 447; Waring v. Loder, 53 N. Y. 581; Springfield F. & M. Ins. Co. v. Allen, 43 N. Y. 389; Allen v. Watertown Ins. Co., 132 Mass. 480; Gardner v. Continental Ins. Co., 75 S. W. Rep. 283 (Ky.).
2. Foster v. Van Reed, 70 N. Y. 19; Dick v. Franklin Ins. Co., 81 Mo. 103, 10 Ins. L. J. 468; Burlingame v. Goodspeed, 153 Mass. 24, 20 Ins. L. J. 283; Concord Ins. Co. v. Woodbury, 45 Me. 447. And see Dunbrack v. Neall, W. Va. 47 S. E. Rep. 303. And see “ Subrogation."
Effect of Assignment by Mortgagee. A suit cannot be maintained and damages recovered from an insurance company by reason of partial destruction of the mortgaged premises, where at the time of the fire the policy had become void as against the owners of the property insured, and the mortgagee to whom the loss was made payable, with mortgagee clause attached, had assigned his mortgage to a third party' before the fire, but failed to transfer to him his
interest as mortgagee in the policy of insurance and to obtain consent of the company. The policy of insurance is a contract of indemnity personal to the party to whom it is issued, or for whose interest the company undertakes to be responsible in case of loss, and cannot be transferred to a third person to be valid in his hands without the company's consent.
Kase v. Hartford Ins. Co., 58 N. J. L. 34, 25 Ins. L. J. 158, 32 Atl. Rep. 1057. And Parties to the Fire Insurance Contract,” Rule 1.
Effect of Payment of Actual Loss to Mortgagee.
Where the mortgagee to whom loss is payable by several insurance policies, with mortgagee clause attached to each, has received the whole amount of the actual loss or damage from some of the insurance compaņies, the assured cannot sustain an action against the others.
Norwich Union Ins. Soc. v. Wellhouse, 113 Ga. 970, 39 S. E. Rep. 397.
Effect of Settlement with Owner and Mortgagor on Void Policy.
If a policy is claimed to be void, but the insurance company, notwithstanding, pays the assured owner or mortgagor a substantial amount in settlement, in addition to an amount paid a mortgagee for an assignment of the mortgage, both being within the amount of the policy or insurance, there being some evidence of intention to include in the settlement the value of the mortgage, the insurance company takes nothing by the assignment, and may be required to release the mortgage;' unless settlement is in terms without prejudice.
1. Prinz v. Citizens' Ins. Co., 80 App. Div. 638, 81 N. Y. Supp. 141.
2. Wisconsin Loan Assoc. v. Webster, 119 Wis. 476, 97 N. W. Rep. 171.
RULE 9. Effect of Insurance of Interest of Mortgagee. Where insurance is upon the interest of the mortgagee exclusively, such interest extends to the whole property as at date of the policy. It is not an insurance of the debt, and if property is consumed in part or damaged by fire, the mortgagee's interest is to that extent affected and the insurance company is bound to make good the loss without regard to value of property remaining.
Excelsior Fire Ins. Co. o. Royal Ins. Co., 55 N. Y. 343; De Wolf v. Capital City Ins. Co., 16 Hun, 116.
Effect of Making Loss Payable to Mortgagee Without the Mort
Where policy is issued to the owner, with loss, if any, payable to a mortgagee as interest may appear, but without the “ mortgagee clause " attached, the contract of insurance is with the owner exclusively, the mortgagee being merely an appointee to receive the amount of the owner's loss; if policy is forfeited as to the owner, the mortgagee cannot recover;' and policy cannot be revived for benefit of the mortgagee, by attaching a mortgagee clause, unless there be a new consideration for it.?
1. Moore v. Hanover Ins. Co., 141 N. Y. 219, 36 N. E. Ref. 191, 23 Ins. L. J. 466, revg. 71 Hun, 199, 24 N. Y. Supp. 509; Cone v. Niagara Ins. Co., 60 N. Y. 619; Franklin Ins. Co. v. Wolff, 23 Ind. App. 556, 54 N. E. Rep. 772 (reasoning and construction of the cases cited under Rule 20 disapproved); Delaware Ins. Co. v. Greer, 120 Fed. Rep. 916 (C. C. A.); Monroe Building & L. Assoc. v. Liv., L. & G. Ins. Co., 50 La. Ann. 1243, 24 So. Rep. 238, 28 Ins. L. J. 266; Holbrook v. Baloise Ins. Co., 117 Cal. 561, 49 Pac. Rep. 555; Reynolds v. London & Lancashire Ins. Co., 128 Cal. 16, 60 Pac. Rep. 467; Scania v. Johnson, 22 Colo. 476, 45 Pac. Rep. 431; Sun Ins. Co. v. Greenville Building & Loan Association, 58 N. J. L. 367, 33 Atl. Rep. 962, 25 Ins. L. J. 657; Hocking v. Virginia F. & M. Ins. Co., 99 Tenn. 729, 42 S. W. Rep. 451; Agricultural Ins. Co. v. Hamilton, 82 Md. 88, 33 Atl. Rep. 429, 30 L. R. A. 633, 25 Ins. L. J. 339; Williamson v. Michigan Ins. Co., 86 Wis. 393, 57 N. W. Rep. 46, 23 Ins. L. J. 311; Keith v. Royal Ins. Co., 117 Wis. 531, 94 N. W. Rep. 295; Richmond v. Phonix Ins. Co., 88 Me. 105, 33 Atl. Rep. 786, 25 Ins. L. J. 354; Cloud County Bank v. German Ins. Co., 6 Kans. App. 219, 49 Pac. Rep. 688; Baldwin v. Phænix Ins. Co., 60 N. H. 164; Antes v. State Ins. Co., 61 Nebr. 55, 84 N. W. Rep. 412; State Ins. Co. v. Maackens, 38 N. J. L. 564; Franklin Savings Institution v. Central Ins. Co., 119 Mass. 240; Grosvenor v. Atlantic Ins. Co., 17 N. Y. 391; Rosenstein v. Traders' Ins. Co., 79 App. Div. 481, 79 N. Y. Supp. 736; Jaskulski v. Citizens' Ins. Co., 131 Mich. 603, 92 N. W. Rep. 98; Breeyear v. Rockingham Ins. Co., 71 N. H. 445, 52 Atl. Rep. 860; Lewis v. Guardian Assur. Co., 93 App. Div. 157, 87 N. Y. Supp. 525, affd., 181 N. Y. 392, ; Hamburg-Bremen Ins. Co. v. Ruddell, Tex. Civ. App. 82 S. W. Rep. 826; Collinsville Savings Soc. v. Boston Ins. Co., Conn. 60 Atl. Rep. 647.
2. Baldwin v. German Ins. Co., 105 Iowa, 379, 75 N. W. Rep. 326, 27 Ins. L. J. 794. And see Rule 20.
RULE 11. Settlement or Adjustment as Affecting Mortgagee — Appraisal.
An owner of the property and the company cannot, without the concurrence of the mortgagee to whom the loss was made payable as interest may appear, effect a settlement or accord and satisfaction without the assent of the latter,' or bind the mortgagee in appraisal or arbitration;and when there is a mortgagee clause in the policy, the mortgagee is not bound by an adjustment of amount with owner. A mortgagee is bound by adjustment or appraisal with the insured, when there is no mortgagee clause."
1. Hathaway v. Orient Ins. Co., 134 N. Y. 409, 32 N. E. Rep. 40, 22 Ins. L. J. 358; Harrington v. Fitchburg Ins. Co., 124 Mass. 126; Hall v. Fire Assoc., 64 N. H. 405, 13 Atl. Rep. 648.
2. Brown v. Roger Williams Ins. Co., 5 R. I. 394; Bergman v. Commercial Union Assur. Co., 92 Ky. 494, 18 S. W. Rep. 122, 15 L. R. A. 270, 21 Ins. L. J. 271. And see Iowa Central Building Assoc. v. Merchants’ Ins. Co., 120 Iowa, 530, 94 N. W. Rep. 1100.
3. Scottish Union & Nat. Ins. Co. v. Field, 16 Colo. 349, 70 Pac. Rep. 149.
4. Collinsville Savings Soc. v. Boston Ins. Co., Conn. 60 Atl. Rep. 647.
RULE 12. Settlement or Adjustment with Mortgagee. Where the insurance is in the name of the mortgagee, and upon his interest as such, there is no breach of trust or obligation in his settling with the insurance company for amount of his interest;' and same principle or rule applies when policy is issued to and in name of owner, with loss payable to the mortgagee, with mortgagee clause” attached, and the policy is void as to the owner.2
1. McDowall v. Morath, 64 Mo. App. 290. 2. See Rules 5 and 11.
Claim of Mortgagee to Whom Loss Made Payable. Where loss is made payable to a mortgagee, it is an absolute appointment for payment of the whole loss. In such a case the mortgagee can claim, receive, or recover the whole loss, holding the balance, if any, in excess of his own interest, as trustee for the owner. But when it is made payable " as interest may ap