Dean v. Engelbrecht

• Citation: 270 P. 437,149 Wash. 148
• Decision Date: 24 September 1928
• Docket Number: 21073.
• Parties: DEAN v. ENGELBRECHT et al.
• Court: United States State Supreme Court of Washington

270 P. 437

149 Wash. 148

DEAN v. ENGELBRECHT et al.

No. 21073.

Supreme Court of Washington

September 24, 1928

Department 1.

Appeal from Superior Court, King County; H. W. B. Hewen, Judge.

Action by Paul Dean against Josephine B. Engelbrecht and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Fred G Clarke, of Seattle, for appellant.

Edger S. Hadley, Peters & Powell, and Robert H. Evans, all of Seattle, for respondents.

PARKER J.

The plaintiff, Dean, sought in the superior court for King county recovery upon a promissory note and foreclosure of a mortgage securing the note executed by the defendants, Josephine Engelbrecht and Grace McCullough, as executrices, to Emma Albright, assigned by her to the St Paul Fire & Marine Insurance Company, and assigned by the insurance company to him. Trial in the superior court upon the merits resulted in judgment denying to Dean recovery from which he had appealed to this court.

Recovery was resisted by the defendants and denied by the superior court upon the ground of payment of the mortgage debt, by the insurance company having paid to Albright a loss occasioned by the burning of the dwelling house upon the mortgaged premises under a policy issued by the insurance company to Engelbrecht and McCullough as owners, containing a mortgagee clause making loss payable to Albright as mortgagee as her interest may appear. Recovery was sought by Dean upon the ground that the insurance company was liable only to Albright as mortgagee and not to Engelbrecht and McCullough as owners and that therefore the insurance company had the right to become, and was, subrogated to the mortgage rights of Albright by assignment from her in pursuance of the terms of the mortgagee clause in the policy.

As we view this record, the controlling facts are not in dispute, and may be summarized as follows: On April 14, 1922, Engelbrecht and McCullough, as executrices, executed and delivered to Albright their promissory note evidencing their indebtedness to her in the sum of $1,500, payable three years after date, and on the same day they, as executrices, also executed and delivered to her a mortgage upon a lot and the dwelling house thereon situated in Seattle, to secure that indebtedness, as it is conceded they were empowered to do. By a provision in the mortgage, Engelbrecht and McCullough agreed 'to keep all improvements on said described premises insured against loss or damage by fire in the sum of $1,500 for the benefit of the mortgagee.' Accordingly Engelbrecht and McCullough caused the insurance company to issue to them an insurance policy insuring the dwelling house on the premises in the sum of $1,500, reciting therein that it 'does insure Josephine B. Engelbrecht and Grace F. McCullough, executrices,' etc., and further reciting, in a mortgagee clause made part of the policy, as follows:

'Loss or damage, if any, under this policy, on buildings only, shall be payable to Emma C. Albright, mortgagee, as interest may appear. Subject to all the terms and conditions hereinafter set forth in this rider, this insurance, as to the interest of the mortgagee only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property, nor by any foreclosure or other proceedings or notice of sale relating to the property, nor by any change in the title or ownership of the property, nor by the occupation of the premises for purposes more hazardous than are permitted by this policy. * * *

'Whenever this company shall pay the mortgagee any sum for loss or damage under this policy, and shall claim that, as to the mortgagor or owner, no liability therefor existed, this company shall, to the extent of such payment, be thereupon legally subrogated to all the rights of the party to whom such payment shall be made, under all securities held as collateral to the mortgage debt, or may, at its option, pay to the mortgagee the whole principal due or to grow due on the mortgage, with interest, and shall thereupon receive a full assignment and transfer of the mortgage and of all such other securities; but no subrogation shall impair the right of the mortgagee to recover the full amount of her claim.'

On June 5, 1925, while this policy was in full force and effect, the insured dwelling house was almost totally destroyed by fire. Thereafter due claim and proof of loss was made by Albright as mortgagee, the same being prepared under the supervision of an adjuster acting for the insurance company, showing the total damage to the dwelling to be $3,439. Upon so making this claim and proof of loss by Albright as mortgagee, she assigned to the insurance company the note and mortgage evidencing the indebtedness due her and her mortgage interest in the premises, and thereupon the insurance company paid to her $1,500, the full amount of the insurance; that being also the amount of the unpaid...