Lumbermen's Nat. Bank of Menominee v. Corrigan

• Decision Date: 05 March 1918
• Citation: 166 N.W. 650,167 Wis. 82
• Parties: LUMBERMEN'S NAT. BANK OF MENOMINEE, MICH., v. CORRIGAN ET AL.
• Court: Wisconsin Supreme Court

167 Wis. 82

166 N.W. 650

LUMBERMEN'S NAT. BANK OF MENOMINEE, MICH.,

v.CORRIGAN ET AL.

Supreme Court of Wisconsin.

March 5, 1918.

Appeal from Circuit Court, Winnebago County; Geo. W. Burnell, Judge.

Action by the Lumbermen's National Bank of Menominee, Mich., against John E. Corrigan and others, in which the North River Insurance Company of City of New York and the North British & Mercantile Insurance Company of Edinboro, were brought in by order of court. Judgment for plaintiff, and the insurance companies appeal. Affirmed.

Mortgage foreclosure. The original complaint was in the usual form, and the action was originally brought against the mortgagor and his grantee alone. By order of the court the insurance companies, who are appellants, were made defendants. There is no bill of exceptions. The facts are that the plaintiff owns a note of $2,400 given by the defendant John E. Corrigan March 16, 1911, to one Harmon, secured by mortgage (being the mortgage now under foreclosure) upon certain lots in Neenah. On the same day that the mortgage was given Corrigan sold the mortgaged premises to the defendant Selin, who assumed and agreed to pay the note and mortgage, and thereafter made three semiannual payments of interest thereon. July 27, 1912, the defendant Corrigan procured at his own expense a policy of insurance for $2,400 from the North River Insurance Company, covering the buildings on the mortgaged premises in the name of Selin, the owner, with the following rider attached:

“It is understood that the above property is covered by a real estate mortgage in favor of Mr. Harmon, of Menominee.”

The insurance company knew the condition of the title, and that Corrigan was not the owner, but had an insurable interest therein as surety for the payment of the note, and it was the intention and real agreement of both parties to make the loss payable to the mortgagee, the language of the aforesaid rider being used with the mistaken idea that it accomplished that purpose. The policy contained a clause permitting other insurance. Five days later Selin procured a policy of insurance in the North British Company on the residence situated on the premises in the sum of $3,000, said policy also permitting other insurance. On December 3, 1912, said residence was damaged by fire to the extent of $2,500, and proofs of loss were made on both policies in due time. December 28, 1912, Selin assigned in writing all moneys to become due under the North British policy, not exceeding $2,400, to Corrigan, the same to be applied on the mortgage and the excess if any to be paid to Selin. This action was commenced March 23, 1914. Thereafter the defendant Corrigan, upon his sworn answer stating the facts, moved that the appellant insurance companies be made parties, and the court ordered that they be brought in as defendants, that the plaintiff serve an amended complaint upon them, and that the defendant Corrigan serve his answer and cross-complaint upon all the other parties to the action. The plaintiff amended its complaint by inserting an allegation that the defendant insurance companies were foreign fire insurance companies authorized to do business in Wisconsin, and were made parties to the action pursuant to the order of court aforesaid. Thereupon Corrigan filed his cross-complaint alleging the aforesaid facts as to the issuance of the insurance policies, the fire, and the making of proofs thereof, and prayed that the insurance companies be required to pay into court the amounts due from them on their policies, and for such other relief as was equitable. The insurance companies filed general demurrers to the plaintiff's complaint and to Corrigan's cross-complaint, which were overruled. The appellant companies took no further steps in the case, and the action was tried by the court, which found the facts substantially as hereinbefore stated, and adjudged that the insurance companies pay into court their proportionate shares of the loss, amounting in the aggregate to $2,500, that the same be applied upon the note and mortgage, and that the plaintiff have the usual judgment of foreclosure and sale for the balance; also that Corrigan recover his costs against the insurance companies. From judgment entered in accordance with the findings, the insurance companies appeal.Thomas H. Gill and Arthur R. Barry, both of Milwaukee, for appellants.

Sheridan, Evans & Merrill, of Green Bay, for plaintiff-respondent.

Paul D. Carpenter, of Milwaukee (Charles W. Stark, Jr., of Milwaukee, of counsel), for respondent Corrigan.

WINSLOW, C. J. (after stating the facts as above).

It is not deemed necessary to take up the contentions urged by the appellants in detail; they will be sufficiently answered by the statement of some general propositions.

[1][2][3] We regard this as a typical case where justice demands the settling in one action of a number of conflicting claims, all very closely connected. The situation was this: The original mortgagor (Corrigan) had deeded the mortgaged premises to Selin, who had...