Biddeford Savings Bank v. Dwelling-House Insurance

Dankqeth, J. This is an action upon a policy of insurance» It is presented upon an agreed statement of facts from which it appears that the policy in question was issued, to Louisa M. Dearborn September 19, 1888, containing a provision by which it was payable to the plaintiff “in case of loss as its interests may be.” At that time the assured was mortgagor oí the premises insured and the plaintiff mortgagee. On November 11, 1884, the assured conveyed her interest in the premises insured and with the consent of the defendant company assigned the policy to William F. Wildes, and on the same day he, in consideration of two hundred dollars, conveyed, by warranty deed, the premises to the plaintiff, who gave back a written agreement not under seal, for a reconveyance, wbicb is made a part of tbe case. On May 6, 1887, Wildes with the written consent of tbe company assigned tbe policy to tbe plaintiff, though previous to this he had released his interest in the premises to his wife Ruth B. Wildes. The defendant raises a preliminary objection to its liability for want of notice and proof of the loss, which happened August 4, 1887. It may be conceded that in the absence of due notice and proof of loss by tbe assured or by some one acting for and in its behalf and by its authority, no duty or liability would rest upon tbe defendant. But this requirement is for tbe sole benefit of tbe insurer; and it is now well settled that wbetber imposed by contract or statute, it may be waived in part or in whole by the company for whose benefit it is imposed. In tbis case, tbe agreed statement finds that notice was received by the defendant immediately after the loss, and that in a few days afterward proof of the damages was furnished by Ruth B. Wildes. No objection to [570] this is now made except that it is not shown to have been under the authority of the plaintiff. No objection whatever was made at the time', but the company acted upon it, made an investigation and came to a conclusion as to the amount of damages satisfactory to it then, and as we must conclude satisfactory now, as no suggestion is made that the conclusion is not correct, or that the company have suffered, or are likely to suffer, from any defect of proof or notice. Hence there seems to have been a very clear waiver of any want or deficiency of notice or proof of loss. The only remaining question is as to the amount the plaintiff is entitled to recover. While it claims the whole damage covered by the policy, as found by the defendant’s agent or adjuster, in behalf of the defense, it is contended that the amount should' be limited, to the sum actually due the plaintiff as mortgagee. This would clearly have been in accordance with the legal construction of the contract, as the facts were when the policy was issued. At that time the plaintiff had only the title of a mortgagee, and had no insurance even upon that interest. The provision for it in the policy, was not an assignment of the policy in its favor, but simply an order on the company to pay that amount in case of a loss. “The insurance was upon the property of the mortgagor as the general owner and not upon the interest of the plaintiff as mortgagee.” Brunswick Sav. Inst. v. Commercial Ins. Co., 68 Maine, 313; Carpenter v. Washington Ins. Co., 16 Peters, 500; Gillett v. Liverpool & L. & G. Ins. Co., 28 American L. Regr, (2d Series) 216 and note; Fogg v. Middlesex M. I. Ins., 10 Cush. 337, 346. But when Wildes conveyed to the plaintiff there was an entire change in the title to the premises. Whatever may have been the effect of the instrument given back, the original mortgage ceased to exist, the mortgagor parted with his title which became from that time vested in the plaintiff. The contract to reconvey may have created an equitable mortgage and may have been an insurable interest, but it in no way affected the legal title, nor was it insured by the policy.. Nor did the conveyance to the wife affect the policy, for the grantor’s interest in that had all gone by the prior conveyance. In this condition of the title the poiicy [571] was duly assigned to the plaintiff with the consent of the defendant. This policy was an insurance upon the property itself issued to a person having the legal title. The assent of the company to the assignment, was a renewal of the original contract to the assignee with all its force, effect and liabilities, as well as its conditions and limitations. In the language of the opinion in. Grant v. Ins. Co., 75 Maine, 196, 203, it is “a new contract with the assignee of the policy on the basis of the old one.” Thus the plaintiff presents itself as having the legal title to the property and the owner of the policy by which that property is insured, duly issued to itself. The contract for a reconveyance though creating an equitable mortgage is no objection to a recovery; it is not even an incumbrance. Grant v. Ins. Co., supra; Newhall v. Union M. F. Ins. Co., 52 Maine, 180. Nor will this result be inequitable. By the contract which the plaintiff gave for a reconveyance, if the property is redeemed, the expense of insurance is one of the items to be paid; if not redeemed it is still the duty of the plaintiff to dispose of the property and after deducting the amount due including the expenso of insurance, account to the equitable mortgagor for the balance. So that the defendant simply performs its contract for which it has received the consideration provided, and the proceeds are divided in accordance with the principles of equity. R. S., c. 49, § 51; Stinchfield v. Milliken, 71 Maine, 567, 572. Judgment for the plaintifffor §1125, the amount of loss as found by defendants adjuster, with interest from October 8, 1887. Peters, C. J., Walton, Virgin, Emery and. Haskell, JJ., concurred.