59 Kan. 470 | Kan. | 1898
This action was brought by Frank S. Thomas against H. P. Throop, The Boston Safe Deposit and Trust Company, H. E. Ball, and others, to
It appears from the evidence that Throop negotiated a loan through Ball, for $65,000, evidenced by two promissory notes, one for $30,000, and the other for $35,000, secured by a trust deed made to Ball as trustee. The trust deed provided :
“Said party of the first part hereby agrees to procure and maintain policies of insurance on the build-' ings erected, and to be erected upon the said premises, in some responsible insurance company to the satisfaction of said party of the second part, or his successors in trust to the amount of $64,000, loss, if any, payable to the said party of the second part, or his successors in trust, and it is further agreed that every such policy of insurance shall be held by the said party of the secozzd part, or his successors in trust, as collateral or additiozzal security for the paymezzt of said indebtedness, and they slzall have the right to collect and receive all moneys which may at any time become payable and receivable thereon, and apply the same wheiz received to the payment of said zzote, together with the cost and expenses incui-red in collecting said insurance, or may elect to have buildings repaired, or zzew buildings erected on the aforesaid premises.”
The mortgagor also covenanted to pay the insuz*ance premiums, and it was provided that,-if such payments were not znade, the party of the second part, or the party of the third part, might pay such premiums, and that the amount paid should be a lien on the premises, the same as the principal debt, and bear interest at the rate of twelve per cent.; and that the
“Loss, if any, payable to Herbert E. Ball, trustee, or to his successor in trust, as interest may appear as hereinafter provided. It being hereby understood and agreed that this insurance as to the interest of the beneficiary only therein shall not be invalidated by any act or neglect of the grantor, or owner of the property insured, nor by vacancy of the premises, nor by the occupation of the premises for purposes more hazardous than are permitted by the terms of this policy; provided, that in case the grantor, or owner, neglects or refuses to pay any premium due under this policy, then on demand the beneficiary shall pay the same; provided, also, that the beneficiary shall notify this company of any change of ownership, vacancy, or increase of hazard which shall come to his or their knowledge, and shall have permission for such change of ownership, vacancy or increase of hazard which shall come to his or their knowledge, duly indorsed on this policy.”
Two principal questions are discussed. 1st, Whether the mortgage clause attached to the policies amounted to a contract, on the part of the beneficiaries under the trust deed, to pay the premiums in case the mortgagor should fail to pay them, or merely to a condition avoiding the policy; and, 2d, Whether Thomas stands in such relation to the insurance contract that he is entitled to sue on it.
The second question is one of more difficulty. It appears that all of the insurance on this property was furnished by Thomas, but that it was in many policies. Some of them were issued by companies-which he represented as agent; others were obtained by him from other agents. For a time Throop paid the pre
“ Subrogation is the substitution of another person in.place of a creditor, so that the person substituted will succeed to all the rights of the creditor having reference to the debt due him. It is independent of any merely contractual relations between the parties to be affected by it, and is broad enough to include every instance in which one party is required to pay a debt for which another is primarily answerable, and which, in equity and good conscience, ought to be discharged by the latter.” Johnson v. Barrett, 117 Ind. 551; 10 Am. St. Rep. 83.
“ Subrogation is purely an equitable result, and de*476 pends like other controversies in equity, on facts, to develop) its necessity in order that justice may be done. Privity of contract is not necessary to its support. It may and does exist on principles of mere equity and benevolence.” Mosier’s Appeal, 56 Pa. St. 76; 93 Am. Dec. 783.
It is often said that this equitable aid may never be invoked by a mere volunteer, or intermeddler, who seeks to become a creditor without right or necessity for doing so. The contention on behalf of the plaintiff in error is that this is the attitude of Thomas ; that he voluntarily paid these premiums ; that credit was extended to Throop alone, aiid that he may only look to Throop for payment. Under the facts disclosed in this case it would certainly be a great misuse of terms to call Thomas an intermeddler. He was really the visible party with whom both Throop and Ball dealt for the insurance. He provided a large number of policies. The largest single policy charged for in his account was for five thousand dollars. The companies issuing the policies looked to Thomas only for the premiums. Ball called on him, and him alone, for the renewals. He was interested both in controlling the line of insurance on the hotel for the purpose of obtaining his commissions, and in maintaining his standing with the companies he represented. In order to accomplish the first, he had to keep the full amount of policies in force; and for the latter, it was necessary that the premiums be promptly remitted. He was in no sense a volunteer or intermeddler. The doctrine of subrogation, being entirely independent of any contractual relation, may properly be invoked in a case like this ; for certainly in equity and good conscience the right of Thomas to .recover, from the holders of the notes secured by this trust deed, the premiums on the policies of insurance of which they have had the full
There is some criticism of the findings of the jury, but we perceive nothing in them inconsistent with each other, or with the general verdict in the case. The demand on Ball was as efficient as a demand on the Deposit and Trust Company.
The judgment is affirmed.