Allen v. Watertown Fire Ins. Co.
| Decision Date | 03 March 1882 |
| Parties | Asa Allen v. Watertown Fire Insurance Company |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Norfolk. Bill in equity, filed October 29, 1880, to redeem land from a mortgage.
The bill alleged that, on August 1, 1879, the defendant corporation, through its agent in Newton, issued to John Schools, on payment of a certain premium, a policy of insurance against fire in the sum of $ 1600 upon certain premises in Medway, owned by Schools and subject to a mortgage of $ 1500 to Margaret Houghton, dated July 19, 1876 payable in case of loss to the mortgagee as her interest might appear; that the policy provided that it should be void if the insured premises should become vacated without the consent of the company, and further that the insurance "as to the interest of the mortgagee only therein," should not be invalidated by any act or neglect of the mortgagor, and that, when a loss after a forfeiture is paid to the mortgagee, the company should be subrogated to the rights of the mortgagee under the mortgage to the extent of such payment, and might pay the full amount of the debt to the mortgagee, and should thereupon receive an assignment of the mortgage; that, on June 5, 1880, the buildings insured were destroyed by fire, and at the time were vacant and unoccupied; that Schools duly proved his loss, and his proofs of loss were accepted by the defendant, and it was afterwards agreed between them that the amount of the loss was $ 1200 that, on September 25, 1880, Houghton executed and delivered to the defendant an assignment of her mortgage, and the defendant paid to her the amount of the same, with interest, amounting to $ 1690; that, on June 17, 1879, the plaintiff lent Schools $ 700, and he executed and delivered to the plaintiff a mortgage of said premises, and, on October 27, 1880, Schools executed and delivered to the plaintiff a deed of his equity in the premises, and the mortgage and equity are now owned by the plaintiff; that the plaintiff tendered to the defendant the difference between the amount of its mortgage and interest accrued and any legal charges thereon, and the amount agreed upon as the loss by fire under the policy, and requested the defendant to discharge and cancel the mortgage, and surrender the note secured thereby, and release and discharge its claim thereunder; and that the defendant refused so to do, unless the plaintiff would pay the full sum of its mortgage and interest accrued, and any legal charges thereon.
The prayer of the bill was for an account; that the plaintiff might be permitted to redeem the premises by paying the amount tendered; that the defendant might be ordered to cancel and discharge its mortgage and release the claim thereby secured; and for further relief. The defendant demurred to the bill for want of equity.
Hearing before Endicott, J., who entered a decree sustaining the demurrer and dismissing the bill; and the plaintiff appealed to the full court.
Decree affirmed.
G. A. Torrey, for the defendant.
G. C. Travis, for the plaintiff.
OPINION
The plaintiff relies upon the case of Graves v Hampden Ins. Co. 10 Allen 281. In that case, a mortgagor, who had agreed to keep the buildings on the mortgaged premises insured for the benefit of the mortgagee, procured of the defendant a policy of insurance payable to the mortgagee in case of loss, which contained the provision that, if the title of the property should be in any way changed, the risk should determine, and also the provision...
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...where policy is not complied with by mortgagor, and the courts will enforce the contract. Gillespie v. Ins. Co., 61 W.Va. 169; Allen v. Ins. Co., 132 Mass. 480, distinguishing Graves v. Ins. Co., 10 Allen 281. "stipulations" and provisions of the policy for subrogation, are a "part of the c......
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