Eаch of the two plaintiffs is a mortgagee, who claims under a policy of insurance for a loss payable to him, which resulted from the burning of a building on the mortgaged property. There were two separatе estates, and each plaintiff has brought an action against four different insurance companies, each of three of which issued a policy upon the building on the first of these estates. One of these thrеe issued another policy on the building on the second estate, and the fourth also issued a policy on this building. Because of the foreclosure of a later mortgage covering both estates, which worked a change in the title, all the policies became void in the hands of the original insurer, and the claim of the plaintiffs, as mortgagees under their earlier mortgages, rests upon the clause in each policy, under our
We have before us four classes of questions: first, whether the respective plaintiffs had the rights of a mortgageе in their several policies at the time of the fire; secondly, whether they severally rendered a sworn statement of the facts concerning their claim seasonably after the fire ; thirdly, if they are entitled to recover, in what proportions should claims be charged upon the different defendants; fourth, from what time shall interest be computed.
The plaintiff Amory holds a first mortgage upon each of the two estates, and the plaintiff Watchmaker holds a second mortgage covering both of them. Upon the building on the first estate — that upon Arlington Street — there were three policies of insurance, one for $3,000 in the Aachen and Munich Company, one for $1,000 in the German Company and one for $1,000 in the Farmers’ Company. These policies were all taken out by Gotlieb Ancelovitz, the owner of the property, and the first two were made рayable in case of loss to M. Dana and L. Levin, mortgagees. On September 25, 1905, these mortgagees indorsed upon each policy a release of all their interest as mortgages, and on the same dаy Ancelovitz, the insured, signed this indorsement upon each policy: “ In case of loss pay this policy to Francis I. Amory, first mortgagee, as his interest may appear, under present or any future mortgages on the insured property. Balance, if any, to Isaac Watchmaker, second mortgagee, as his interest may appear.” This was assented to by an authorized agent of each of these two defendants. On the same day the two mortgages upon this property under which the plaintiffs claim to recover insurance were made, one to each of the plaintiffs, although that to Watchmaker was not delivered and recorded until October 6, 1905.
We see no ground for questioning the right of Amory as a mortgagee under these two policies of insurance. . The right of Watchmaker is questioned on the ground that his mortgage was not delivered until eleven days afterwards. It does not appear that the insurance companies had any knowledge of the facts, except that which may be inferred from the papers. There was no fraud nor concealment, and the writings must therefore be construed in connection with the facts as they exist, in reference
The case of Attleborough Savings Bank v. Security Ins. Co.
The release of all interest of Dana and Levin under the policies previously held as security for their mortgage, and the direction by the insured, in the nature of an assignment, assented to by the companies, furnished a good consideration, and the policies were as effectual for the protection of the plaintiffs as if they had then been first issued, payable in this form.
Bor is there any valid defense on the ground of a failure to assign the notes and mortgages to the defendants, as required by the statute if the defendants elect to pay the mortgagee the full amount secured by it. In the first place, the defendants have not so elеcted. See Eliot Five Cents Savings Bank v. Commercial Union Assurance Co.
The policy of the Farmers’ Fire Insurance Company was issued on September 27, 1905, and was, by its terms, “ payable
The two policies on the building upon the second estate — that on West Third Street — were made “payable in cаse of loss to M. Dana and L. Levin mortgagees, as interest may appear.” On September 25, 1905, the mortgage referred to in the policies was assigned to the plaintiffs, who took and held it as collateral sеcurity for the indebtedness secured by the mortgages made to them directly on that day. On December 4, 1905, Dana and Levin executed, by indorsement upon each of the two policies referred to, that issued by the Rеliance Insurance Company and that issued by the Aachen and Munich Fire Insurance Company, the following assignment: “ For value received, we hereby assign to Francis I. Amory and Isaac Watchmaker, all our interеst as mortgagees in this policy.” This was assented to in an indorsement upon each policy by a duly authorized agent of the company.
This mortgage was discharged by the plaintiffs on February 2, 1906. If we assume, without deciding, that after the assignment of the mortgage to the plaintiffs on September 25, 1905, Dana and Levin held rights under these two policies as trustees for the assignees of the mortgage, and that the assignment of the policies оn December 4, 1905, was as effectual in favor of the plaintiffs as if it had been made on September 25, it still transferred to them only the rights held by the mortgagees under that mortgage. They had no other rights, and they could not give the plaintiffs’ rights to a payment under these policies for the protection of their interests under another mortgage. Attleborough Savings Bank v. Security Ins. Co.
Inasmuch as the claims of the plaintiffs that can be sustained are all for a loss on the property upon Arlington Street, Amory, the first mortgagee, is entitled to the whole amount of his debt and interest; under the mortgage, due at the time of the fire, to be assessed upon the three companies thаt issued policies on this property, in proportion to the amounts of their respective policies. The whole amount of his debt and interest on April 12, 1908, was $3,711.10, and he is entitled to receive on accоunt thereof $2,226.66 from the Aachen and Munich Fire Insurance Company, $742.22 from the German Fire Insurance Company and $742.22 from the Farmers’ Fire Insurance Company, with interest in each case from August 8, 1908, sixty days from the time when noticе in writing of the fire was furnished to the company under the policy. The amount of the loss was payable at that time, and if the parties had not then agreed upon it, or had it determined, so that an action could be maintained for it, interest should be allowed on it from that date, when it is ascertained.
The amount of the loss on this property, as found by the referees, was $5,000. The balance of $1,288.90, after paying Amory, is to go to Watchmaker in part payment of his indebtedness se
The judgments are set aside, and judgments for the defendants are ordered in the actions upon the policies covering the property on West Third Street. In the actions on the policies covering the property on Arlington Street, judgments for the plaintiffs are to be entered for the amounts stated in this opinion.
So ordered.