61 Neb. 55 | Neb. | 1900
Suit was instituted by plaintiff as mortgagee to recover for a total loss by fire under a policy of insurance issued by the defendant. The mortgage clause is as follows: “Loss, if any, payable to Katharine M. Antes of Canandaigua, N. Y., as her interest may appear, she being the mortgagee,” and was indorsed on the policy at the time of its execution and delivery. The answer pleaded “that the contract of insurance sued on in this qgupp contains a stipulation that ‘no insurance, whether-
The failure of an insured to pay at maturity a note given for the premium due on a policy of insurance has been held to be a complete defense as to liability for loss of the property insured during the default, where it is provided that the policy, because of non-payment of such note, shall lapse and be of no force and effect, unless the conditions are waived by the insurer. Home Fire Ins. Co. v. Garbacz, 48 Nebr., 827; Phenix Ins. Co. v. Bachelder, 32 Nebr., 490. It is, however, claimed and pleaded in the reply that the mortgagee had no notice of the non-payment of the premium note, and that, as to her, she is in a different position than would be the insured mortgagor, were he alone interested in a recovery. We regard the mortgagee as standing in no more favorable light than as assignee of the policy of insurance to the extent of her interest in the property insured by virtue of her mortgage thereon, and her rights with respect to the litigation are to be gauged by, and rest upon, the contract of insurance entered into by the insured and insurer. There are times, it is true, when a mortgagee of insured property may claim where no right would exist in favor of the insured mortgagor, but this arises
It is claimed that the policy in suit should be construed according to the laws of Iowa, in which state the defendant company is incorporated and has its principal place of business. It is nowhere pleaded that the contract was entered into in that state, and the pleadings, taken together, we regard as admitting of no other conclusion than that the contract was entered into in' this state, and at the place where the property insured was located. The pleadings disclose that the policy of insurance was not to be effective until countersigned by the company’s agent at Neligh, Nebraska, where the property was located, and that on the same day it was signed by him as agent at the place mentioned it was delivered to the insured. The contract having been made and entered into in this state, the lex loci must govern, and its validity must be determined by our laws, rather than those of the state of Iowa. Joslin v. Miller, 14 Nebr., 91; Miller v. Wilson, 146 Ill., 523; Heaton v.
The judgment of the'district court is
Affirmed.