Louden v. Waddle

Mr. Justice Mercur delivered the opinion of the court, A widow’s dower is not merely a lien, but an estate in the land: Turner v. Hauser, 1 Watts 420 ; Deitz v. Beard, 2 Id. 171; Miller v. Leidig, 3 W. & S. 456 ; Thomas v. Simpson, 3 Barr 69 ; Zeigler’s Appeal, 11 Casey 173 ; Schall’s Appeal, 4 Wright 170 ; Gourley v. Kinley, 16 P. F. Smith 270. While holding such an estate in the land of her deceased husband, and being in the possession thereof, Mrs. Louden, formerly Sweeny, obtained an insurance on the buildings thereon, in such form as if she had been the sole owner of the same. Although at the time she held this mortgage, now in contention, on the premises, yet no mention thereof is made in the application, or in the policy, nor in the proofs of loss. On the contrary, in her proofs of loss she declared “the property insured belonged to me for myself and son in trust.” Having an insurable estate in the property, and the form of the policy showing the insurance to be on the buildings and not on the debt secured by the mortgage, the burden of proving it to be on the debt rests on the party alleging it. The insurance was not procured under any arrangement with the defendants, nor with their knowledge. She paid the whole premium. The houses were wholly destroyed. She compromised with the insurance company and received the money. Soon thereafter, with the money received, she erected a new house on the premises in place of those destroyed; but, the evidence indicates, of less value than the former. A careful examination of the whole evidence fails to show any declaration of Mrs. Louden that she understood the insurance to be of the mortgage. The amount of the risk taken on the buildings was much greater than the sum due on the mortgage. While the fact that she rebuilt with a part of the money received could not change the previously existing rights of the parties, yet it is persuasive evidence that she understood the estate, and not the debt, to have been insured. If the case was now between her and the insurance company, her right to recover more than the value of her estate in the buildings might be questioned; but these defendants were [250] strangers to that contract, and cannot set up any excess of valuation then, to increase their rights now. Inasmuch as the money which she received from the insurance company was equal' to the sum due ou the mortgage, the learned judge thought the latter was thereby extinguished, and in this scire facias thereon directed the jury'to return a verdict in favor of the defendants. In this there was error. The defendants claim that the insurance by a mortgagee of an interest in the premises intended to be for the amount of his debt, is an insurance of his debt, and in case of a loss,"the receipt by him of that amount from the insurance company, operates as a satisfaction of the mortgage. To support this view they cite Smith v. Ins. Co., 5 Harris 253 ; Ins. Co. v. Updegraff, 9 Id. 513 ; Reed v. Lukens, 8 Wright 200. It may well be doubted whether these cases sustain that view on the facts assumed. Whether or not they do, we now indicate no opinion! The facts in this case do not admit of the application of such a rule of law. The effect claimed from the mere insurance by a mortgagee for the amount of his debt is in conflict with elementary authority and many well considered cases, among which may be cited : Wood on Fire Ins. 863; Cushing v. Thompson, 34 Maine 499 ; Concord Ins. Co. v. Woodbury, 45 Id. 453 ; White v. Brown, 2 Cush. 417; King v. State Mu. Ins. Co., 7 Id. 4; Suffolk Ins. Co. v. Boyden, 9 Allen 126; Excelsior Fire Ins. Co. v. Royal Ins. Co., 55 N. Y. 343; Hancox v. Fishing Ins. Co., 3 Sum. 132. We, however, will not rule the law on a statement of facts not before us. On the case as proved the assignments of error are sustained. Judgment reversed and a venwe facias de novo awarded.