Nordyke & Marmon Company v. Gery
| Decision Date | 19 October 1887 |
| Docket Number | 13,670 |
| Citation | 13 N.E. 683,112 Ind. 535 |
| Parties | Nordyke & Marmon Company v. Gery et al |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled Dec. 10, 1887.
From the Tippecanoe Superior Court.
The orders and judgment of the court are affirmed, with costs.
H. W Chase, F. S. Chase, F. W. Chase, A. P. Stanton and J. E Scott, for appellant.
J. R Coffroth, T. A. Stuart and J. H. Adams, for appellees.
This was a proceeding commenced in the Tippecanoe Superior Court by the Nordyke & Marmon Company to foreclose two mortgages executed by Gery, Hall & Co. to the plaintiff below.
The mortgages covered a tract of real estate, the chief value of which consisted in a roller-mill thereon erected, with the furniture and fixtures therein contained. They were given to secure debts amounting respectively to $ 2,399.80 and $ 376.83. Both of the mortgages contained stipulations therein written, similar in legal effect, by which the mortgagors covenanted to keep the mortgaged premises fully insured for the benefit of the mortgagee, as its interest might appear. The mortgagors had caused the property to be insured, in various fire insurance companies, to the amount of $ 7,500. Of the policies so taken out, two, one issued by the Louisiana Insurance Company, the other by the Monarch Insurance Company, each for $ 1,250, had been made payable to, and were delivered to, the mortgagee, as a compliance with the covenant contained in the mortgage securing the debt of $ 2,399.80. No insurance was taken especially applicable to the other mortgage.
The mortgagee alleged that, since the issuance of the policies, the roller-mill, with all the combustible material appertaining to it, had been destroyed by fire, and that the Monarch Insurance Company had become wholly insolvent, so that the mortgaged premises, with the insurance policies delivered to the appellant, were wholly inadequate to secure its debt, which, with the accumulated interest, amounted to about $ 3,200. There was a prayer for the foreclosure of the mortgages, and that a lien might be declared and enforced against the fund, generally, arising from the insurance policies, for an injunction to prevent the appellees from assigning or collecting the money on the policies, and for the appointment of a receiver to collect the money, etc.
The court granted a temporary restraining order enjoining the defendants from making any disposition of the policies, or the money arising therefrom, until a day certain, and until the further order of the court. At the time fixed, the matter respecting the continuance of the restraining order in force, and the appointment of a receiver, was heard by the court upon affidavits presented by the parties respectively. Pending the hearing, $ 1,333 of the moneys arising from the policies had by agreement been paid into court. Of this sum the court found that $ 360 ought to be paid to the mortgagee to reimburse it for a reduction, or "scaling," of the policies held by it, which scaling resulted from the taking out of other policies of insurance by the mortgagors subsequent in date to those held by the appellant. It was further found that the sum of $ 396.82, the amount of the second mortgage debt, with the accumulated interest, should be paid out of this fund.
Thereupon the defendants entered of record their consent that the sums above mentioned should be paid. Upon this being done, the court dissolved the temporary restraining order theretofore issued, refused to appoint a receiver, and released the residue of the fund in the hands of the clerk and ordered it to be paid to the defendants.
From the interlocutory order so made this appeal is prosecuted.
Since the order of the court rendered available to the appellant a sum sufficient to satisfy the debt secured by the second mortgage, the consideration of any question connected with that instrument can be of no practical moment.
It was a disputed question, but the court may have found from the evidence before it that the appellant accepted the policies delivered to and retained by it as a compliance with the covenant contained in the first mortgage. That being so, the propriety of the order made by the court, in denying the application for a receiver, and in ordering that the residue of the money in its custody be paid to the appellees, depends upon whether or not, after the acceptance of the policies, the appellant may nevertheless resort to the insurance taken out by the mortgagors for their own benefit, on account of the total or partial insolvency of one of the companies whose policy it retains. While the court may have deemed it unnecessary in any event that the expense of a receiver should be incurred, and its order in that regard may have been proper, however the rights of the parties may ultimately appear, it is nevertheless apparent that the court must have reached the conclusion that in no event supposable upon the facts exhibited would the appellant be entitled to the money remaining in the hands of the clerk. Hence the order that the money should be paid to the appellees.
On behalf of the appellant it is contended, with much force and plausibility, that the covenant to keep the property fully insured for the benefit of the mortgagee, as its interest might appear, operated to vest in the appellant a...
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