Flint v. Westchester Fire Insurance

This seems to be a very plain case. The insurance policy issued by the United States Fire Insurance Company contained a provision that the policy should be void if *340without the assent, in writing or in print, of the company the property insured “ shall be sold or this policy assigned.” By the subsequent sale to Flint without such consent this condition was violated, and, except as to the mortgagee which was protected by another clause hereinafter mentioned, the policy was void. Neither Warren, nor Flint, had any interest in the policy as owner of the property.

Nor was the situation changed by the contract of reinsurance between the insurer and the defendant, the Westchester Fire Insurance Company. The contract could not enlarge the rights of Warren or the plaintiff under the policy, or renew rights already lost. The only party as to whom the contract still existed as one of insurance was the mortgagee, the County Savings Bank ; and this was by virtue of a clause in the policy which, so far as material to the question before us, reads as follows: “ If this policy shall be made payable to a mortgagee of the insured real estate, no act or default of any person other than such mortgagee or his agents, or those claiming under him, shall affect such mortgagee’s right to recover in case of loss on such real estate: provided, that . . . whenever this company shall be liable to a mortgagee for any sum for loss under this policy, for which no liability exists as to the mortgagor, or owner, and this company shall elect by itself, or with others, to pay the mortgagee the full amount secured by such mortgage, then the mortgagee shall assign and transfer to the companies interested, upon such payment, the said mortgage, together with the note and debt thereby secured.”

So far as respects this case the defendant company stood in the place of the original insurer. It elected to take an assignment under this clause in the policy. The fact that at its request the assignment was made to Foster in trust for the company rather than to the company itself is of no consequence. The assignment to him was in effect an assignment to the company. The policy in the case of Graves v. Hampden Fire Ins. Co. 10 Allen, 281, cited by the plaintiff, does not appear to have contained a clause for an assignment like the clause in this policy. That case therefore is clearly distinguishable from this.

It is also immaterial whether the original amount of insurance exceeds the amount of the mortgage. No matter what was the *341original amount of the insurance, after the sale only the amount necessary for the protection of the mortgagee still stood, and even that stood subject to the provision for an assignment.

In accordance with the terms of the report the order is

Bill dismissed.