Whitehouse v. Cargill

Foster, J. The father of the plaintiff devised certain real estate to his son, and in his will directed that the son pay to the plaintiff five hundred dollars when she should become twenty-one years of age. The father died November 10, 1871, and his will was duly admitted to probate. The defendant was appointed guardian of the plaintiff in 1873, and continued to be her legal guardian till she arrived at the age of twenty-one years in 1890. [481] On October 2d, 1876, the son conveyed by warranty deed tbe real estate to tbis defendant. This real estate, upon a former bill in equity, brought by the plaintiff against the defendant, was charged with the payment of said legacy, ( Whitehouse v. Cargill, 86 Maine, 60,) and by a decree of the court was sold by the master and the proceeds, amounting to $143, was paid to the plaintiff. After the termination of defendant’s guardianship he procured an insurance of five hundred dollars on the store which was a part of the real estate conveyed to him by his warranty deed from the testator’s son. The store was burned and defendant collected the insurance. The present case raises two questions : (1) Is the defendant-accountable to the plaintiff for the insurance which he pi’ocured in his own name, and has collected? (2) Is he accountable to the plaintiff for the rents and profits of the real estate prior to the sale by the master? Both questions we think must be answered in the negative. When the real estate was sold by the master and the proceeds paid to the plaintiff, her remedy against this defendant was exhausted, unless there might be a remedy upon the guardian’s bond. The nature of the plaintiff’s claim upon the real estate was a lien thereon for the payment of her legacy, enforceable in equity. Merritt v. Bucknam, 77 Maine, 253; Same v. Same, 78 Maine, 504; Taft v. Morse, 4 Met. 523; Thayer v. Finnegan, 134 Mass. 62. The contract of insurance is one of indemnity only. The defendant had an insurable interest, and could recover only to the extent of his loss. The contract of insurance does not run with the land, and is an agreement to indemnify the assured against any loss which he may sustain, and not any loss incurred by another having an interest as mortgager, redemptioner, attaching creditor or otherwise. Cushing v. Thompson, 34 Maine, 496; White v. Brown, 2 Cush. 412; Donnell v. Donnell, 86 Maine, 518. [482] There was no privity of contract in fact or law between the plaintiff and the defendant by which this insurance, placed by the defendant at his own expense and upon his interest, should be held under the lien that existed upon the real estate. Donnell v. Donnell, supra; McIntire v. Plaisted, 68 Maine, 363; Cushing v. Thompson, 34 Maine, 496; White v. Brown, supra. The plaintiff had an equitable lien upon the estate, a charge upon it rather than any title to or legal estate in it. Taft v. Morse, 4 Met. 523; Merritt v. Bucknam, 78 Maine, 504, 507; Bailey v. Ekins, 7 Ves. 323; Gardner v. Gardner, 3 Mason, 178. The holder of an equitable lien, with no legal estate, cannot call the owner of the legal estate to account for the rents and profits received by him while occupying the premises. Bill dismissed.