Heldreth v. Fed. Land Bank Of Baltimore, 7051.

• Court: Supreme Court of West Virginia
• Writing for the Court: MAXWELL
• Citation: 163 S.E. 50
• Parties: HELDRETH. v. FEDERAL LAND BANK OF BALTIMORE et al.
• Docket Number: No. 7051.,7051.
• Decision Date: 23 February 1932

163 S.E. 50

HELDRETH.
v.
FEDERAL LAND BANK OF BALTIMORE et al.

No. 7051.

Supreme Court of Appeals of West Virginia.

Feb. 23, 1932.

Syllabus by the Court.

1. An insurer, not having consented in writing to additional insurance, may legally deny

[163 S.E. 51]

liability under a fire insurance policy containing a covenant against additional insurance, where it appears that at the time of obtaining the policy there was such other insurance.

2. Where an insurer in a fire insurance policy denies liability to the insured for legal cause, it is entitled to be subrogated to the rights of the mortgagee in the amount paid to it by the insurer.

Appeal from Circuit Court, Harrison County.

Suit by Filmore D. Heldreth against the Federal Land Bank of Baltimore and others. From an adverse decree, plaintiff appeals.

Affirmed.

E. A. Bartlett, of Clarksburg, and Wm. T. George, of Philippi, for appellant.

Harvey F. Smith, of Clarksburg, and Cook & Markell, of Baltimore, Md., for appellee State Assur. Co., of Liverpool, England.

I. P. Whitehead, of Baltimore, Md., and Charles W. Louchery, of Clarksburg, for appellee Federal Land Bank of Baltimore.

MAXWELL, J.

This suit was instituted by a mortgagor to cancel an assignment by the mortgagee to the insurer of so much of the mortgage debt as equals the amount paid by the insurer to the mortgagee under "standard" mortgage provision of plaintiff's policy of fire insurance for loss of a dwelling on the mortgaged property. On the merits, the trial court found against the plaintiff and dismissed his original and amended bills. The plaintiff appeals.

The insurer denied liability to the plaintiff, but, recognizing its liability to the mortgagee under the "standard" mortgage clause of the policy, it paid to the mortgagee the insurance on the dwelling in the amount of $1,000.00. And, under a provision of the policy which subrogated the insurer to the rights of the mortgagee, pro tanto, in such circumstances, the insurer obtained of the mortgagee an assignment of the mortgage to the extent of the insurance paid.

None of the grounds relied on by the insurer in support of its denial of liability to the insured need be considered, save one, and it is predicated on a condition of the policy that "this policy shall be void if there be now or shall hereafter be procured any other insurance upon such property not permitted in writing hereon." The policy did not contain any permission in writing thereon for additional insurance. But there was...